Federal Courts Weigh In On Overuse of Gang Enhancements

California prosecutes more of its citizens for gang crimes than any other state.  Recently, the Federal courts recognized this overuse of gang enhancements and have reversed a number of California convictions as a result.  One case is Garcia vs. Carey. In Garcia, a California jury found the defendant guilty of robbery, a gun-use enhancement, and a street gang enhancement. (Id. at pp. 1100-1101.) The facts showed the defendant was a member of the El Monte Flores gang. The defendant’s offense occurred after the victim entered a liquor store and nodded to the defendant, who was with two or three other people. The defendant asked the victim if he knew him, and when the victim said no, the defendant said not to speak to him. When the victim tried to leave the store, the defendant identified himself by name, said he was a member of the El Monte Flores gang, and asked the victim if he wanted to get jacked (robbed). The defendant then stole $14.95 from the victim. (Id. at p. 1101.) The liquor store was in the territory of the El Monte Flores gang. (Garcia v. Carey, supra, 395 F.3d 1099, 1102.) The defendant challenged the sufficiency of the evidence to prove the gang enhancement specific intent requirement. (Id. at p. 1100.) The federal district court ruled that the prosecution failed to present any direct or circumstantial evidence that the defendant committed the robbery with the specific intent to promote, further, or assist in other criminal conduct bythe El Monte Flores street gang. (Id. at p. 1002.) The Ninth Circuit agreed. It noted there was no evidence, aside from generic gang expert testimony, “that would support an inference that Garcia robbed [the victim] with the specific intent to facilitate other criminal conduct by the [gang].” (Garcia v. Carey, supra, 395 F.3d at 1103.) There was “nothing inherent in the robbery that would indicate it furthers some other crime” and there was “… a total failure of proof of the requisite specific intent.” (Ibid.) The Ninth Circuit reached the same result in Briceno v. Scribner, supra, and on similar facts. (Briceno v. Scribner, supra, at pp. 1071-72.) The gang expert in Briceno testified almost identically to the expert in Garcia and to the expert in this case: gang members commit these crimes
to gain status or respect and the commission of violence by the gang increases the fear they engender in the community. (Id. at 1074.) The Ninth Circuit again found the evidence insufficient to meet reasonable doubt standards required by the Fourteenth Amendment. (Id. at 1080.) In Briceno, the Ninth Circuit also distinguished post-Garcia California appellate cases which concluded there was sufficient evidence to support the jury’s true findings on the gang enhancements. (Briceno v. Scribner, supra, at pp. 1080-1081.) There was no evidence appellant or his co-defendant brandished gang signs during the attack. (See Id. distinguishing People v. Villalobos (2007) 145 Cal.App.4th 310, People v. Hill (2006) 142 Cal.App.4th 770, and People v. Romero (2006) 140 Cal.App.4th 15.) Instead, Briceno looked to the decision in In re Frank S., supra, 141 Cal.App.4th at 1197, as an articulation of state law which supports the Ninth Circuit analysis of what section 186.22, subdivision (b) requires. (Briceno v. Scribner, supra, at 1081.) “A trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation,” but such testimony is insufficient to establish “that a specific individual possessed a specific intent.” (Id. at 842.) . According to several testifying witnesses, appellant’s gang membership was wellknown, but gang membership is not a crime. ( See People v. Castenada (2000) 23 Cal.4th 743, 752.) What was missing in Garcia was purposeful gang involvement. Only the gang expert’s testimony supported the finding that these crimes had been committed for the benefit of the gang and only the gang expert’s testimony that these crimes were committed to gain respect or instill fear in the community. The expert failed to explain what criminal activity was furthered or intended to be furthered by the specific crime committed.

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