P. v. Garcia

Filed 11/21/16 P. v. Garcia CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ISAAC GARCIA,
Defendant and Appellant.
B266328
(Los Angeles County
Super. Ct. No. VA128373)
APPEAL from a judgment of the Superior Court of Los Angeles County.
John A. Torribio, Judge. Affirmed, as modified.
Janet J. Gray, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Yun
K. Lee and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and
Respondent.
* * * * * *

-- 1 of 15 --

2
Isaac Garcia (defendant) appeals his convictions for two counts of
attempted premeditated murder and one count of robbery. He argues that
there is insufficient evidence to support the attempted murder counts and
that the trial court mis-instructed on those counts; he further argues that
there is insufficient evidence to support the gang allegation or the finding, as
to the attempted murders, that he personally inflicted great bodily injury.
We conclude the convictions and gang enhancement on the attempted
murders are sound, but vacate the gang enhancement on the robbery count
and the finding on the attempted murder counts that he personally inflicted
great bodily injury. His sentence must accordingly be modified to 65 years to
life in prison.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Defendant, Israel Itehua (Itehua) and Jeremy Harris (Harris) are all
members of the Bellflower Devils clique of the 18th Street gang.
In November 2012, the three men saw a man they thought was a rival
gang member in their clique’s “gang territory” and followed him into an
apartment complex. As they approached the complex, Itehua pulled out a
gun. Their quarry ran into an apartment, and two women standing outside
that apartment told the men, “There’s kids here.” Defendant told one of the
women, “I don’t give a fuck, bitch. This is fucking 18th Street”; he then
punched her in the face. Seconds later, Itehua shot the other woman in the
neck, paralyzing her from the chest down. The three then turned to run
away. As they left the complex, Itehua shouted, “18th Street,” and fired four
shots into a homeless man who had earlier refused to state any gang
affiliation.
A month later, defendant walked into a Rite Aid, stuffed a bottle of
alcohol beneath his sweatshirt, walked out the door without paying for it and
punched the female loss prevention officer who tried to stop him.

-- 2 of 15 --

3
II. Procedural History
The People charged defendant with (1) the attempted murder of the
woman Itehua shot (Pen. Code, §§ 187, subd. (a) & 6641), (2) the attempted
murder of the homeless man (§§ 187, subd. (a) & 664), and (3) robbery
(§ 211).2 The People further alleged that all three crimes were committed for
the benefit of, at the direction of, or in association with a criminal street gang
(§ 186.22); that both attempted murders were committed willfully,
deliberately and with premeditation (§ 664, subd. (a)); that a principal
discharged a firearm in the course of each attempted murder (§ 12022.53,
subd. (d)); and that defendant personally inflicted great bodily injury in the
course of each attempted murder (§ 12022.7, subd. (b)).
A jury convicted defendant of all three crimes and found all further
allegations to be true.
The trial court sentenced defendant to a prison term of 68 years and
four months to life. The court imposed a sentence of 32 years to life for each
attempted murder, comprised of 7 years to life for the attempted murder plus
25 years for the discharge of a firearm allegation. The court imposed a
sentence of four years and four months for the robbery, compromised of one
year for the robbery (one-third the midterm of three years) plus three years
and four months for the gang allegation (one-third the 10-year enhancement
for that allegation). The court ran all three terms consecutively.
Defendant filed a timely appeal.
DISCUSSION
I. Attempted Murder Convictions
The trial court instructed the jury that it could convict defendant of the
attempted murders committed by Itehua if it found that (1) defendant had
aided and abetted Itehua and Harris in committing the crimes of battery or
disturbing the peace (by approaching the rival gang member), and (2) the
1 All further statutory references are to the Penal Code unless otherwise
indicated.
2 Itehua and Harris were also charged with the two attempted murders.
We previously affirmed Itehua’s conviction and sentence. (People v. Itehua
(June 30, 2016, B265575) [nonpub. opn.].)

-- 3 of 15 --

4
attempted murders were a natural and probable consequence of those crimes.
On appeal, defendant argues that his attempted murder convictions are
defective because (1) there is insufficient evidence that the attempted murder
of the woman and the homeless man were a natural and probable
consequence of committing battery or disturbing the peace against the rival
gang member, (2) the trial court erred in instructing the jury it could find
attempted murder to be a natural and probable consequence of those lesser
crimes, (3) the trial court erred in not requiring the jury to find that
defendant personally acted with premeditation, which violates People v. Chiu
(2014) 59 Cal.4th 155 (Chiu) and precludes the imposition a life sentence
under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), and (4) the
trial court erred in responding to a jury note seeking an “enlarge[ment]” of
the standard instruction on the natural and probable consequences doctrine.
A. Sufficiency of the evidence
A person is liable for a crime if he commits the crime himself or if he
aids and abets another in its commission. (§ 31.) A person is liable as an
aider and abettor if (1) he knows of the actual perpetrator’s unlawful purpose,
(2) he, by his act or advice, aids, promotes, encourages or instigates the actual
perpetrator’s commission of the crime, and (3) he acts with the intent or
purpose to commit, encourage or facilitate the actual perpetrator’s
commission of the crime. (People v. McCoy (2001) 25 Cal.4th 1111, 1118;
People v. Prettyman (1996) 14 Cal.4th 248, 259 (Prettyman); People v. Beeman
(1984) 35 Cal.3d 547, 561.) When a person aids and abets a crime, he must
have the same intent as the actual perpetrator. (McCoy, at p. 1118 & fn. 1;
People v. Nguyen (2015) 61 Cal.4th 1015, 1054.)
An aider and abettor is guilty not only of the crime he intends to aid
and abet, “but also of any other crime the perpetrator actually
commits . . . that is a natural and probable consequences of the intended
crime.” (People v. Rangel (2016) 62 Cal.4th 1192, 1228-1229 (Rangel);
Prettyman, supra, 14 Cal.4th at p. 254.) Before criminal liability will attach
for a further crime beyond the intended crime, the People must prove (1) that
the defendant aided and abetted the intended crime, and (2) the further
crime “was a natural and probable consequence of the [intended crime] that
the defendant aided and abetted.” (Prettyman, at pp. 261-262.) In assessing

-- 4 of 15 --

5
the second element, courts ask: Would a reasonable person in the
defendant’s circumstances recognize that the further crime was a reasonably
foreseeable consequence of the crime the defendant intended to aid and abet?
(Chiu, supra, 59 Cal.4th at p. 165; People v. Medina (2009) 46 Cal.4th 913,
920 (Medina); People v. Gonzales (2001) 87 Cal.App.4th 1, 9-10; People
v. Woods (1992) 8 Cal.App.4th 1570, 1587.) For these purposes, it is enough
if the further crime is a “‘“possible consequence which might reasonably have
been contemplated.”’” (Medina, at p. 920.) The further crime “‘“need not
have been a strong probability.”’” (Ibid.) Under these standards, it does not
matter “‘whether the aider and abettor actually [subjectively] foresaw the
[further] crime.’” (Ibid.; Gonzales, at p. 9.)
Defendant argues that there is insufficient evidence that a reasonable
person in his situation would recognize that the attempted murder of a
bystander (such as the woman outside the apartment or the homeless man)
might be a natural and probable consequence of a battery or confrontation
that disturbs the peace against a rival gang member. In evaluating this
sufficiency challenge, we ask whether there was “substantial evidence”—
namely, evidence that is reasonable, credible and of solid value—to support
the jury’s finding. (People v. Banks (2014) 59 Cal.4th 1113, 1156 (Banks),
overruled on other grounds by People v. Scott (2015) 61 Cal.4th 363, 391.) In
so doing, we view the evidence in the light most favorable to the jury’s finding
and draw all reasonable inferences to support that finding. (Ibid.)
We conclude that the evidence was sufficient to support the jury’s
finding that Itehua’s attempted murders of the woman and the homeless man
were a natural and probable consequence of the confrontation with the rival
gang member that defendant intended to aid and abet. The People’s gang
expert testified that a gang member who is “disrespected” by someone who
gets in his way is “expected . . . not to back down” and instead to “commit an
act of violence” in response to such defiance. Defendant and his cohorts did
precisely that. Defendant himself did not hesitate before confronting, cussing
out, and punching one of the two women outside the apartment when, as he
later explained, she “disrespected” him by telling him that children were
inside the apartment, and Itehua did not hesitate before shooting the other
woman or shooting the homeless man who refused to respond to their gang

-- 5 of 15 --

6
challenge. It is well within a jury’s province to find that a reasonable person
would foresee that murder is a natural and probable consequence of a gang-
related assault or fistfight. (E.g, Medina, supra, 46 Cal.4th at p. 922 [so
holding]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1376 (Olguin) [same];
People v. Godinez (1992) 2 Cal.App.4th 492, 499-500 (Godinez) [same]; People
v. Montano (1979) 96 Cal.App.3d 221, 226-227 (Montano) [same]; see
generally People v. Ayala (2010) 181 Cal.App.4th 1440, 1449-1450 [collecting
cases].) Accordingly, there was ample evidence from which a jury could
reasonably conclude that defendant and Itehua would commit violence, which
could escalate to murder, against anyone whom they viewed as
“disrespecting” them as they pursued the gang rival.
Defendant raises four objections to this analysis.
First, he argues that a gang expert’s testimony is insufficient by itself
to support a jury’s finding as to what is a natural and probable consequence.
We need not plumb the correctness of this assertion because the jury’s finding
in this case also rested on defendant’s own words and actions.
Second, defendant contends that the cases cited above—Medina,
Olguin, Godinez and Montano—involved escalating gang violence against a
gang rival, not a bystander. This is true, but these cases did not purport to
limit their reasoning to gang rivals. Because the People in this case also
presented evidence that gang members will violently confront not only gang
rivals, but also any bystander who disrespects them, these cases remain
relevant.
Third, defendant cites several cases that, in his view, dictate a contrary
conclusion. However, most of those cases are distinguishable on their facts.
(See U.S. v. Andrews (9th Cir. 1996) 75 F.3d 552, 556 [in non-gang context,
no aiding and abetting liability when cohort “acted impulsively” in shooting a
bystander]; State ex rel. Juvenile Dep’t of Multnomah County v. Holloway
(1990) 102 Or.App. 553, 556-558 [795 P.2d 589] [in gang case, no aiding and
abetting liability when defendant was one of nine people in the back of a
truck from which shots were fired at gang rivals]; Juan H. v. Allen (9th Cir.
2005) 408 F.3d 1262, 1276-1279 [in gang context, no aiding and abetting
liability when defendant was simply standing next to person who shot at
gang rivals]; U.S. v. Pena (6th Cir. 1993) 983 F.2d 71, 71-72 [no aiding and

-- 6 of 15 --

7
abetting liability when defendant was passenger in a car carrying drugs
secreted in trunk]; Pinell v. Superior Court (1965) 232 Cal.App.2d 284, 288
[no aiding and abetting liability when defendant helped woman sexually
assaulted by his nephew and others].) The other cases defendant cites are
irrelevant. (See People v. Moore (2011) 51 Cal.4th 386, 406 [expert testimony
that blood found in a room “could have” come from defendant being present in
that room too speculative]; People v. Markus (1978) 82 Cal.App.3d 477, 481-
482 [setting forth intent requirement for aiding and abetting that was
subsequently overruled in People v. Montoya (1994) 7 Cal.4th 1027, 1040].)
Lastly, defendant points out that he told the police in his post-arrest
interview that he did not know Itehua was carrying a gun. Defendant’s
argument in this regard fails factually and legally. Factually, defendant’s
denial of knowledge conflicts with other testimony at trial that Itehua pulled
out the gun before entering the complex in a manner that could be observed
by others. The jury resolved that conflict against defendant, and we cannot
gainsay that determination on appeal. (People v. Armstrong (2016) 1 Cal.5th
432, 451 [“a reviewing court does not reweigh the evidence”].) Legally, in the
gang context, it is “not necessary for . . . a gang member to have known a
fellow gang member was in fact armed.” (Medina, supra, 46 Cal.4th at
p. 924; see also People v. Montes (1999) 74 Cal.App.4th 1050, 1056 (Montes)
[so holding].)
B. Instructional errors
We independently review whether the trial court properly instructed
the jury. (People v. Olivas (2016) 248 Cal.App.4th 758, 772.)
1. Use of battery and disturbing the peace as intended crimes
As explained above, a jury may find a defendant criminally liable not
only for the crime he intends to aid and abet a perpetrator in committing, but
also for “any other crime the perpetrator actually commits . . . that is a
natural and probable consequence of the intended crime.” (Rangel, supra, 62
Cal.4th at pp. 1228-1229.) Defendant argues that the trial court erred in
instructing the jury that he could be held liable for attempted murder on the
basis of the intended crimes of battery and disturbing the peace because
(1) those intended crimes cannot, as a matter of law, naturally and probably
lead to the attempted murder of bystanders, (2) there is not a “close

-- 7 of 15 --

8
connection” between the intended crimes and the attempted murder of
bystanders, and (3) the intended crimes are too “trivial.”
Defendant’s first argument appears to be a more extreme version of his
sufficiency-of-the-evidence challenge—namely, that in no case can the
evidence establish that the attempted murder of a bystander is a natural and
probable consequence of a confrontation of a gang rival that disturbs the
peace or amounts to a battery. Because, as explained above, we conclude that
the evidence in this case is sufficient to support the jury’s finding of the
requisite link, we necessarily reject defendant’s more extreme position that a
jury can never so find. Defendant seems to suggest that our analysis of the
sufficiency of the evidence in this case does not resolve the matter because we
must, when evaluating his more global attack, view the evidence in the light
most favorable to him rather than in the light most favorable to the jury’s
finding. But the cases he cites for this proposition—Logacz v. Limansky
(1999) 71 Cal.App.4th 1149, 1152, footnote 2 and Krotin v. Porsche Cars
North America, Inc. (1995) 38 Cal.App.4th 294, 298—do not support his
proposition; instead, they apply when a court is evaluating the prejudicial
impact of an incorrect jury instruction. Here, the instructions were correct.
Defendant’s second argument starts from a valid premise. “[T]here
must be a close connection between the [intended] crime aided and abetted
and the offense actually committed.” (Prettyman, supra, 14 Cal.4th at
p. 269.) But his argument overlooks that when evaluating that connection,
we do not “look to the naked elements of the target crime but must [instead]
consider the full factual context in which [the defendants] acted.” (People v.
Canizalez (2011) 197 Cal.App.4th 832, 854 (Canizalez); People v. Lucas (1997)
55 Cal.App.4th 721, 732-733.) As explained above, the facts of this case
indicate a sufficiently close connection between gang members’ attempts to
confront a rival and violence against anyone who disrespects them as they do
so.
Defendant’s last argument draws support from our Supreme Court’s
observation, in Prettyman, that “[m]urder . . . is not the ‘natural and probable
consequence’ of ‘trivial’ activities.” (Prettyman, supra, 14 Cal.4th at p. 269.)
However, for these purposes, “triviality” has been defined expansively.
Misdemeanors are not too trivial to lead to murder. (Canizalez, supra, 197

-- 8 of 15 --

9
Cal.App.4th at p. 854 [“the label ‘felony’ or ‘misdemeanor’ . . . is not
talismanic in deciding whether the aider and abettor can be convicted of a
nontarget murder”].) Depending upon the facts of the case, the courts have
held, murder can be a natural and probable consequence of a simple assault
or of disturbing the peace (for fighting). (People v. Gonzales and Soliz (2011)
52 Cal.4th 254, 299-300 [simple assault]; Montes, supra, 74 Cal.App.4th at
pp. 1054-1055 [simple assault and breach of the peace for fighting in public].)
This was just such a case. As explained above, the People presented a gang
expert’s testimony that gang members often attack bystanders who
disrespect them along with evidence that defendant himself struck a
bystander because, in his own words, she “disrespected” him. This evidence
was enough to send to the jury the question of whether the intended battery
and disturbing the peace against the rival gang member could reasonably
and probably lead to the attempted murder of the victims in this case.
2. Failure to instruct the jury that it must find that defendant
acted intentionally, deliberately and with premeditation
In People v. Favor (2012) 54 Cal.4th 868, 879-880 (Favor), our Supreme
Court held that a defendant who aided and abetted a robbery could be
convicted of attempted premeditated murder as the natural and probable
consequence of the robbery without any proof that the premeditated nature of
the murder was foreseeable. “It is sufficient,” the Court ruled, “that
attempted murder is a reasonably foreseeable consequence of the crime aided
and abetted, and the attempted murder itself was committed [by the actual
perpetrator] willfully, deliberately and with premeditation.” (Id. at p. 880.)
A few years later, the Court in Chiu, held that a defendant could no longer be
convicted of first degree premeditated murder under the judicially created
natural and probable consequences doctrine. (Chiu, supra, 59 Cal.4th 155 at
pp. 158-159, 165-166.)
Defendant argues that Chiu’s rule that the natural and probable
consequences doctrine cannot support a conviction for premeditated murder
applies with equal force to premeditated attempted murder, and effectively
overruled Favor. Because Favor is no longer good law, defendant reasons, he
can be convicted of attempted premeditated murder only if a jury specifically
finds that he personally foresaw that an attempted murder would be
committed intentionally, deliberately and with premeditation. Because there

-- 9 of 15 --

10
was no such jury finding in this case, defendant asserts that the life sentence
imposed for attempted premeditated murder exceeds the statutory maximum
authorized by section 664, subdivision (a), in violation of Apprendi, supra,
530 U.S. 466.
We reject both of defendant’s arguments. To begin, we decline
defendant’s invitation to invalidate Favor. The Chiu Court took pains to
distinguish Favor and to reaffirm its continued validity. (Chiu, supra, 59
Cal.4th at p. 163.) Although the Court is currently considering whether to
overturn Favor, (People v. Mateo, review granted May 11, 2016, S232674), the
Court has yet to do so. Until it does, Favor remains good law and forecloses
defendant’s arguments that he must personally foresee the premeditated
nature of the attempted murder and that he cannot be sentenced to life
imprisonment without a jury finding of that fact. (See Auto Equity Sales, Inc.
v. Superior Court (1962) 57 Cal.2d 450, 455.)
C. Response to jury note
1. Pertinent facts
At the close of trial, the trial court instructed the jury on the natural
and probable consequences doctrine using CALCRIM No. 403. That
instruction informed the jury that it had to find that “[u]nder all of the
circumstances, a reasonable person in the defendant’s position would have
known that the commission of the attempted murder was a natural and
probable consequence of the commission of the disturbance of the peace or
battery.” During deliberations, the jury sent a note requesting “an enlarged
explanation” of the above-described language “to clarify meaning.” With the
consent of counsel, the court asked the jury foreperson what the jury
“need[ed] clarified.” The foreperson responded that the jury was looking for
guidance on “whether or not this particular incident led to another.” After
excusing the foreperson, the court agreed with counsel that the jury was
seeking to have the court “tell them the answer” to the question whether
attempted murder was a natural and probable consequence of battery or
disturbing the peace. With the consent of counsel, the court gave the
following response to the jury note: “The instruction is the law and the court
cannot expand on it.”

-- 10 of 15 --

11
2. Analysis
Defendant argues that the trial court’s response to the jury note was an
abdication of its continuing duty to properly instruct the jury on the law.
(§ 1138 [if the jury “desire[s] to be informed on any point of law arising in the
case, . . . the information required must be given”]; People v. Beardslee (1991)
53 Cal.3d 68, 97.) Because a court is not “always” required to “elaborate on
the standard instructions,” a court has discretion in deciding whether and
how to respond; we consequently review the trial court’s handling of a jury
note for an abuse of discretion. (Beardslee, at p. 97.)
In this case, the trial court did not abuse its discretion. Upon receiving
the jury note, the court carefully conducted an inquiry into precisely what the
jury wanted to know. That inquiry revealed that the jury was looking for the
court to tell it “whether or not this particular incident led to another”—that
is, the answer to the ultimate issue the jury was to decide. A court cannot
tell a jury how to decide the issues before it. (E.g., People v. Montero (2007)
155 Cal.App.4th 1170, 1180.) Defendant suggests that the court should have
restated the standard or quoted snippets from various cases, but doing so
would not have been responsive to the jury’s stated concern and would have
risked either misstating the law (e.g., Long v. Barbieri (1932) 120 Cal.App.
207, 213 [noting dangers of instructing jury with “excerpts from . . .
opinions”]), or being misinterpreted as an answer to the jury’s concern—that
is, how to decide one of the ultimate issues in the case. For these reasons, the
court did not abuse its discretion when it declined to further instruct on the
law and instead directed the jury that it had all the law the court could
provide.
II. Gang Enhancement
A defendant who commits a felony “for the benefit of, at the direction
of, or in association with any criminal street gang” is subject to a variety of
sentencing enhancements depending on the underlying crime. (§ 186.22.)
For these purposes, a “criminal street gang” is defined as (1) an “ongoing
organization, association, or group of three or more persons,” (2) “having as
one of its primary activities the commission of one or more of” several
statutorily enumerated crimes, (3) “having a common name or common
identifying sign or symbol,” and (4) “whose members individually or

-- 11 of 15 --

12
collectively engage in or have engaged in a pattern of criminal gang activity”
(that is, two or more of its members have committed two or more statutorily
enumerated offenses in the last three years). (§ 186.22, subds. (e) & (f).)
Defendant argues that (1) the gang enhancements as to all three crimes
must be vacated due to insufficient evidence of the Bellflower Devils clique’s
“primary activities,” and (2) the gang enhancement as to the robbery must be
vacated because it was a crime he committed on his own and was in no way
for the benefit of, at the direction of, or in association with his gang. We
review these claims for substantial evidence. (Banks, supra, 59 Cal.4th at
p. 1156.)
A. Primary activities
For the commission of qualifying crimes to be one of a gang’s “primary
activities,” the commission of those crimes must be “one of the group’s ‘chief’
or ‘principal’ occupations.” (People v. Sengpadychith (2001) 26 Cal.4th 316,
323.) Put differently, the People must prove that the gang’s members
“consistently and repeatedly” commit those crimes. (Id. at p. 324.) There are
many ways to prove that a gang’s commission of qualifying crimes is one of
its “primary activities”: (1) the People can prove that individual gang
members have consistently and repeatedly committed qualifying crimes, and
the tally may include the defendant’s commission of the charged offenses
(People v. Vy (2004) 122 Cal.App.4th 1209, 1224-1226 [commission of three
crimes by a small gang during a three-month period; sufficient]; People v.
Duran (2002) 97 Cal.App.4th 1448, 1457; cf. In re Jorge G. (2004) 117
Cal.App.4th 931, 944-946 [commission of a single crime; insufficient]; People
v. Perez (2004) 118 Cal.App.4th 151, 160 [commission of three qualifying
crimes, including the charged crime, within one week as well as another
qualifying crime six years earlier; insufficient]); (2) a gang expert can offer an
opinion on the gang’s primary activities (People v. Gardeley (1996) 14 Cal.4th
605, 620, overruled on other grounds by People v. Sanchez (2016) 63 Cal.4th
665 (Sanchez); Sengpadychith, at p. 324; People v. Martinez (2008) 158
Cal.App.4th 1324, 1330); or (3) the People can prove that the gang’s primary
purpose is to instill fear and to intimidate, and that gang members have
committed qualifying crimes to create such fear and intimidation (Duran, at
p. 1465).

-- 12 of 15 --

13
In this case, there is ample evidence that the Bellflower Devils clique’s
primary activities were the commission of statutorily enumerated crimes.
The People’s expert testified that the clique’s primary activities “range from
theft, vandalism, grand theft auto, sales of narcotics, possession of weapons,
possession of firearms, witness intimidation, arson, assault, assault with
deadly weapons, and all the way up to murder.” Nearly all of these crimes
are qualifying felonies. (§ 186.22, subd. (e)(9), (10), (25) [grand theft, grand
theft auto, and unlawful taking of a vehicle], (20) [felony vandalism], (4) [sale
and possession for sale of narcotics], (8) [witness intimidation], (23), (31),
(32), (33) [possession of firearms and concealed firearms], (7) [arson], (1)
[assault with a deadly weapon], (3) [homicide].) This opinion went
unchallenged. The People also introduced evidence that Bellflower Devils
clique members committed five statutorily enumerated crimes in a three-year
period—a 2010 attempted murder, a 2010 assault with a deadly weapon, and
the two attempted murders and the robbery committed in 2012 in this very
case. (§ 186.22, subd. (e)(1) [assault with a deadly weapon], (2) [robbery], (3)
[homicide].)
Defendant responds with two arguments. Citing In re Nathaniel C.
(1991) 228 Cal.App.3d 990, he asserts that the expert’s opinion lacked a
sufficient foundation. However, the court in Nathaniel C. found fault with an
expert’s testimony because it repeated “nonspecific hearsay of a suspected
shooting” of which the expert had no personal knowledge. (Id. at pp. 1003-
1004.) Here, the expert relied upon his personal knowledge of the Bellflower
Devils clique of the 18th Street gang, a gang with which he was familiar. His
opinion was further corroborated by properly admitted conviction documents
regarding the two 2010 crimes as well as the evidence admitted as to the
2012 attempted murders and robbery charged in this case. Defendant
further argues that the expert’s testimony ran afoul of U.S. v. Mejia (2d Cir.
2008) 545 F.3d 179, 190-191, which prohibits experts from offering case-
specific opinions. Our Supreme Court has rejected Mejia’s rule. (Sanchez,
supra, 63 Cal.4th at p. 676 [experts may “give an opinion about what [case-
specific] facts may mean”].)

-- 13 of 15 --

14
B. Robbery
To prove the fact that a crime was committed “for the benefit of, at the
direction of, or in association with” a gang, it is not enough to show that the
defendant was a gang member. (In re Frank S. (2006) 141 Cal.App.4th 1192,
1195-1196; People v. Ramon (2009) 175 Cal.App.4th 843, 853.)
Here, the sole evidence connecting defendant’s robbery at the Rite Aid
with the gang was his membership in the Bellflower Devils clique. The
People’s gang expert offered no testimony regarding the robbery, and there
was no evidence that defendant called out his gang’s name or otherwise did
or said anything during the robbery to indicate it was associated with the
gang, rather than a crime he committed for his own benefit.
On appeal, the People suggest that there was enough evidence because
the Rite Aid was located within 18th Street gang territory. Defendant also
had visible gang tattoos on his face during the robbery, as they were there
during the shootings the month before. But this is insufficient to connect the
robbery to the gang. The commission of a crime within gang territory is not
enough, by itself, to forge the necessary link. And there was no evidence that
the loss prevention officer recognized defendant’s tattoos as gang-related. On
this record, there was insufficient evidence that the robbery was for the
benefit of, at the direction of, or in association with a gang. The
enhancement for the robbery count must accordingly be vacated.
III. Personal Infliction of Great Bodily Injury Enhancement
Defendant argues, and the People concede, that there is insufficient
evidence to support the jury’s finding that he personally inflicted great bodily
injury on the two victims Itehua shot. We agree, and order that this
enhancement be vacated. This does not affect the length of defendant’s
sentence.

-- 14 of 15 --

15
DISPOSITION
The judgment must be modified to strike the gang enhancement on the
robbery count (and reduce the sentence by three years and four months) and
to strike the personal infliction of great bodily injury enhancement on the two
attempted murder counts. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_______________________, J.
HOFFSTADT
We concur:
_______________________, P. J.
BOREN
_______________________, J.
CHAVEZ

-- 15 of 15 --