AA stopped by the 7-11 at 4 in the morning on the way home from a party. He was hungry and this was his last chance to get some snacks before arriving home to an empty refrigerator. As well as AA's three friends, there were plenty of other kids hanging out in the 7-11 parking lot, as was frequently the case in the wee hours of a sunday morning. Having had trouble with drunken teens before, the clerk came out and told AA and his friends that they could not come in the store. Words were exchanged, and a "tussle" ensued. During the tussle, the clerk took hold of AA's shirt. While AA was trying to get free by removing his shirt (or while AA was holding the clerk down, depending on how you look at the video tape), AA's friends assaulted the clerk with fists, feet, and the handle of the 7-11 dustpan.
One assailant wore red pants. The others wore neutral, non-gang colors. Nobody uttered any gang slogans, or left any graffiti. According to the prosecution gang expert, the parking lot was well-known as a Norteno hang-out, although it was also frequented by Surenos.
Was the assault committed "for the benefit of the [Norteno] gang" in violation of Penal Code section 186.22(b)? Absolutely. And here's how:
All four youths were associated with the Norteno gang in one way or another. (I argued that gang association alone did not prove an intent to promote separate criminal conduct by the Nortenos, and that gang members have a right to commit crimes for the same good old fashioned reasons as anyone else, but to no avail.) Even though the gang expert testified that the youths likely intentionally avoided identifying themselves as Nortenos (for fear of facilitating identification or risking additional penalties if caught), it apparently didn't matter because the clerk would know that they were Nortenos anyway. The prosecution theory (which the judge bought entirely and even added to) was that the youths behaved as they did only because they were gang members
, and, despite the deliberate absence of anything identifying the youths as Nortenos, they somehow still intended to instill in the clerk fear of the Nortenos
and not fear of four drunk guys whom he had never seen before and would likely never see again.
So there you have it. This week I picked up a VC2800.2 evasion "for the benefit of the gang." I'm assuming the prosecution's theory is that evading is intended to preserve the liberty of a gang member and thus further distinct criminal gang activity. That'll work, I guess. The only small victory I have had recently with gang cases was this morning, when I threatened to demur to a count of 186.22(d) as a distinct felony, charged in addition to a felony second degree burglary (shoplifting beer "for the benefit of the gang"!). Sub D is neither a substantive offense nor a sentence enhancement, but an "alternate sentencing provision"
usually applied to misdemeanors to "elevate" them to felonies at sentencing. The nitwit prosecutor promptly amended to replace the improperly pled D allegation with a count of 186.22(a) (participation in a criminal street gang), not realizing that there is no way to prove a substantive "gang membership" count in this case. Unlike 186.22(b) which merely requires that the crime is committed for the benefit of the gang (very easy to prove--see above), 186.22(a) requires, among other things, that the prosecutor prove that the defendant aided and abetted the commission of a separate felony committed by gang members
. See In re Jose P.
(2003) 106 Cal.App.4th 458.
The AA assault case was originally assigned to the second worst judge (in my humble opinion) in the county for gang trials. Just my luck, after papering her, it went to the
worst judge for gang cases. So I knew from the start it was pretty much a loser. However, some fun was had when I called my surprise gang expert, a 31-year-old former high ranking Norteno. Jesus M is a very intelligent and articulate man with a huge amount of expertise in the area of Norteno gang activity. Although I had the pleasure of standing next to Mr. M a couple of weeks ago as we heard my two favorite words
, Mr. M remains in custody on another case and regaled the court in his gang-expert orange jumpsuit with tales of Norteno derring-do. Impeachment was interesting. The more felonies Mr. M had been involved in, the more credible his first-hand accounts of Norteno activity. So bring on those priors!
So . . . is defending gang enhancements really pissing into the wind? Is pissing into the wind while wearing a red shirt public urination for the benefit of the gang?