THE
PEOPLE, Plaintiff and Respondent, v. ZACKERY PRUNTY, Defendant and Appellant.
S210234
SUPREME
COURT OF CALIFORNIA
62
Cal. 4th 59; 355 P.3d 480;
192 Cal. Rptr. 3d 309; 2015 Cal. LEXIS 5758
August
27, 2015, Filed
SUBSEQUENT
HISTORY: Reported at People v. Prunty, 2015
Cal. LEXIS 8610 (Cal., Aug. 27, 2015)
PRIOR-HISTORY:
Superior Court of Sacramento
County, No. 10F07981, Marjorie Koller, Judge. Court of Appeal, Third Appellate
District, No. C071065.
People
v. Prunty, 214 Cal. App. 4th 1110, 155 Cal. Rptr. 3d 64, 2013 Cal. App. LEXIS
229 (Cal. App. 3d Dist., 2013)
HEADNOTES-1
CALIFORNIA
OFFICIAL REPORTS HEADNOTES
(14)
Criminal Law ¤ 529.6--Sentence Enhancements--Criminal Street Gang--Gang
Subsets--Sufficiency of Evidence.--The prosecution
failed to prove the existence of a single "criminal street gang"
within the California Street Terrorism Enforcement and Prevention Act's meaning
that fit the prosecution's theory of why the gang enhancement applied in defendant's
case. The critical shortcoming in the prosecution's evidence was the lack of an
associational or organizational connection between the two alleged gang subsets
that committed the requisite predicate offenses, and the larger gang that
defendant allegedly assaulted a perceived rival gang member to benefit. The
evidence was not sufficient to permit the jury to infer that the organization,
association, or group at issue included the subsets that committed the predicate
offenses.
[Erwin
et al., Cal. Criminal Defense Practice (2015) ch. 144, ¤ 144.03; 2 Witkin
& Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Public Peace and
Welfare, ¤ 32.]
COUNSEL:
Susan K. Shaler, under appointment by
the Supreme Court, for Defendant and Appellant.
Lisa
M. Romo for Pacific Juvenile Defender Center as Amicus Curiae on behalf of
Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez,
Wanda Hill Rouzan and Kevin L. Quade, Deputy Attorneys General, for Plaintiff
and Respondent.
JUDGES:
Opinion by Cuéllar, J., with Werdegar,
Liu, and Kruger, JJ., concurring. Concurring and dissenting opinion by
Cantil-Sakauye, C. J., with Chin, J., concurring. Concurring and dissenting
opinion by Corrigan, J.
OPINION
BY: Cuellar
OPINION
CUÉLLAR, J.--Penal Code
section 186.20 et seq., also known as the California Street Terrorism Enforcement
and Prevention Act (the STEP Act or Act), was enacted in 1988 to combat a
dramatic increase in gang-related crimes and violence. The Act imposes various
punishments on individuals who commit gang-related crimes--including a
sentencing enhancement on those who commit felonies "for the benefit of,
at the direction of, or in association with any criminal street gang."
(Pen. Code, ¤ 186.22, subd. (b) (section 186.22(b)), italics added.) 1 A criminal
street gang, in turn, is defined by the Act as any "ongoing organization,
association, or group of three or more persons" that shares a common name
or common identifying symbol; that has as one of its "primary activities"
the commission of certain enumerated offenses; and "whose members
individually or collectively" have committed or attempted to commit
certain predicate offenses. (¤ 186.22, subd. (f) (section 186.22(f)).)
To prove that a criminal street gang exists in accordance with these statutory
provisions, the prosecution must demonstrate that the gang satisfies the
separate elements of the STEP Act's definition and that the defendant sought to
benefit that particular gang when committing the underlying felony.
1 All further unlabeled statutory
references are to the Penal Code.
This
case asks us to decide what type of showing the prosecution must make when its
theory of why a criminal street gang exists turns on the conduct of one or more
gang subsets. In this case, the prosecution's theory was that defendant Zackery
Prunty committed an assault to benefit the Sacramento-area Norte–o street gang.
The evidence showed that Prunty identified as a Norte–o; that he claimed
membership in a particular Norte–o subset, the Detroit Boulevard Norte–os; and
that Prunty uttered gang slurs and invoked "Norte" when shooting a perceived
rival gang member at a Sacramento shopping center. To show that Prunty's crime
qualified for a sentence enhancement under the STEP Act, the prosecution's gang
expert testified about the Sacramento-area Norte–o gang's general existence and
origins, its use of shared signs, symbols, colors, and names, its primary activities,
and the predicate activities of two local neighborhood subsets. The expert did
not, however, offer any specific testimony
contending that these subsets' activities connected them to one another or to
the Sacramento Norte–o gang in general. We must determine whether this is
enough to satisfy the STEP Act's "criminal street gang" definition.
We
conclude that the STEP Act requires the prosecution to introduce evidence
showing an associational or organizational connection that unites members of a
putative criminal street gang. The prosecution has significant discretion in
how it proves this associational or organizational connection to exist; we
offer some illustrative examples below of strategies prosecutors may pursue.
But when the prosecution seeks to prove the street gang enhancement by showing
a defendant committed a felony to benefit a given gang, but establishes the commission
of the required predicate offenses with evidence of crimes committed by members
of the gang's alleged subsets, it must prove a connection between the gang and
the subsets. In this case, the prosecution did not introduce sufficient evidence
showing a connection among the subsets it alleged comprised a criminal street
gang, so Prunty was not eligible for a sentence enhancement under the STEP Act.
We must therefore reverse the Court of Appeal's contrary judgment.
I. Background
On
the evening of November 26, 2010, 21-year-old Gustavo Manzo went to a fast-food
restaurant in a Sacramento shopping plaza, accompanied by his girlfriend and
her two younger brothers. Manzo was wearing a Los Angeles Dodgers baseball cap,
which is attire typically associated with Sure„o street gangs. As Manzo and his
companions approached the restaurant, defendant Prunty and Emilio Chacon confronted
them. Prunty described himself as a "Norte" and a
"Northerner," and specifically identified as a member of the
"Detroit Boulevard ... set." His companion Chacon was a member of the
Varrio Franklin Boulevard Norte–os, based out of South Sacramento.
Prunty,
who was wearing a red jacket, approached Manzo, asked him where he was from,
and said, "fuck a Skrap, 916." "Skrap" and
"Scrap" are derogatory terms Norte–o gang members use for Sure„o gang
members, while "916" is the Sacramento area code. In response, Manzo
called Prunty and Chacon "Buster"--a derogatory term for Norte–os.
The confrontation escalated, with Prunty throwing gang signs and saying
"this is Norte, fuck a Skrap,
916," and Manzo and his girlfriend telling Prunty to "keep
walking" and calling Prunty and Chacon "Busters." Eventually
Manzo advanced on Prunty, and Prunty drew a gun and fired six times. The
bullets struck and injured Manzo and his girlfriend's 10-year-old brother.
Prunty
was charged with the attempted murder of Manzo and assault with a firearm for
shooting the 10-year-old victim. (¤¤ 664, 192, subd. (a), 245,
subd. (a)(2).) The prosecution alleged that each of these offenses was
committed "for the benefit of, at the direction of, or in association with
[a] criminal street gang," and was thus subject to a sentence enhancement
under the STEP Act. (¤ 186.22(b).) To prove that Prunty qualified for
the enhancement, the prosecution introduced evidence from a gang expert, Detective
John Sample, a veteran officer with the Sacramento Police Department.
Sample--who interviewed Prunty shortly after his arrest--testified that Prunty
admitted that he is a "Northerner," or a Norte–o gang member, and described
his membership in the Detroit Boulevard Norte–o "set." Sample also
testified that Prunty's clothing and hairstyle, his previous contacts with law
enforcement, and his possession of Norte–o
graffiti, images, clothing, and other paraphernalia were consistent with Norte–o
gang membership.
Sample's
further testimony related to the prosecution's theory that Prunty assaulted
Manzo with the intent to benefit the Norte–os. Sample testified that the Norte–os
are "a Hispanic street gang active in Sacramento and throughout
California" with about 1,500 local members. Sample explained that
Sacramento-area Norte–os are not associated with any particular
"turf" but are instead "all over Sacramento" with "a
lot of subsets based on different neighborhoods." Sample described the
"primary activities" of Sacramento-area Norte–os as unlawful homicide,
attempted murder, assault, firearms offenses, and weapons violations. Sample
also testified that Norte–os share common names, signs, and symbols, including
names derived from "the north, Norte–os, [and] northerner," the letter
N, the number 14, and the color red. The "Norte–os' enemy," moreover,
is the Sure„o street gang, whose members identify with the color blue, the
letters S and M, and the number 13. Both the Norte–os and the Sure„os
"originated out of the California prison systems" in the 1960s and
1970s. The Sure„os are associated with the Mexican Mafia prison gang, while the
Norte–os have a "street gang association" with the Nuestra Familia, or
NF, prison gang. Finally, Sample described various other aspects of Norte–o and
Sure„o gang culture generally, including the appearance of gang graffiti and
gang signs as well as each gang's use of common derogatory statements about its
rivals.
The
prosecution relied on Sample not only to describe Norte–os and Sure„os in
general terms, but also to prove that the Sacramento-area Norte–os were indeed
the ones who committed the two or more predicate offenses that an
"organization, association, or group" must commit to coincide with
the STEP Act's definition of a criminal street gang. (¤ 186.22(f).)
First, Sample described a 2007 confrontation between two Norte–o gang subsets,
the Varrio Gardenland Norte–os and the Del Paso Heights Norte–os, that led to
two Varrio Gardenland members' convictions for a variety of offenses, including
murder and attempted murder. Second, Sample testified about a 2010 incident in
which members of the Varrio Centro Norte–os shot at a former Norte–o gang
member. Besides Sample's testimony that these gang subsets referred to themselves
as Norte–os, the prosecution did not introduce specific evidence showing these
subsets identified with a larger Norte–o group. Nor did Sample testify that the
Norte–o subsets that committed the predicate offenses shared a connection with
each other, or with any other Norte–o-identified subset.
The
jury acquitted Prunty of attempted murder but convicted him of the lesser
included offense of attempted voluntary manslaughter. (¤¤ 664, 192,
subd. (a).) It also convicted him of assault with a firearm (¤ 245,
subd. (a)(2)) and found true the allegations that Prunty personally used a
firearm (former ¤ 12022.5, subd. (a)) and committed the offenses at the
direction of, in association with, or for the benefit of a criminal street gang (¤ 186.22(b)). The
trial court sentenced Prunty to an aggregate term of 32 years in prison.
On
appeal, Prunty claimed that the prosecution failed to introduce sufficient
evidence to prove that he committed the offenses for the benefit of a criminal
street gang, as that term is defined in section 186.22(f). Prunty
challenged the prosecution's theory that the relevant "ongoing organization,
association, or group" (¤ 186.22(f)) in this case was the
"criminal street gang known as the Norte–os" in general. Prunty emphasized the prosecution's
use of crimes committed by various Norte–o subsets to prove the existence of a
single Norte–o organization. He argued that this improperly conflated multiple
separate street gangs into a single Norte–o gang without evidence of
"collaborative activities or collective organizational structure" to
warrant treating those subsets as a single entity. According to Prunty, the
prosecution's theory did not satisfy the STEP Act's "criminal street
gang" definition.
In
support of this argument, Prunty relied on People v. Williams (2008) 167
Cal.App.4th 983 [86 Cal. Rptr. 3d 130] (Williams), which addressed
the identification of the relevant group under the STEP Act. (Williams, at
p. 987.) In that case, the court held that where a gang contains various
subsets, the gang cannot be used as the relevant group--and evidence of various
subsets' activities cannot be used to prove the gang's existence--absent proof
of "some sort of collaborative activities or collective organizational
structure." (Id. at p. 988.) The court in Williams also held
that more than "a shared ideology or philosophy, or a name that contains
the same word, must be shown before multiple units can be treated as a whole
when determining whether a group constitutes a criminal street gang." (Ibid.)
The
Court of Appeal here rejected the reasoning in Williams, which it held
improperly "add[ed] an element to the [STEP Act] that the Legislature did
not put there." Instead, the Court of Appeal reasoned, evidence of "a
common name (Norte–o) and common identifying signs and symbols (the color red,
the letter N, the number 14)" coupled with the existence of "a common
enemy (the Sure„os)" is sufficient to show that a criminal street gang
exists. The Court of Appeal relied on other decisions that did not explicitly
require proof of a collaborative connection to demonstrate that "the Norte–os"
are a "criminal street gang within the meaning of section 186.22."
Based on this interpretation of the STEP Act's requirements for showing a
criminal street gang to exist, the Court of Appeal sustained Prunty's sentence
enhancement under section 186.22.
We
granted Prunty's petition for review to address the type of evidence required
to support the prosecution's theory that various alleged gang subsets
constitute a single "criminal street gang" under section 186.22(f).
II. Discussion
Although
this case encompasses the sufficiency of the evidence to sustain Prunty's
sentence enhancement, the core question in this case is statutory. At the heart
of this case is the meaning of the phrase "criminal street gang"--a
term in colloquial usage that is nonetheless given a specific meaning in the
STEP Act. The STEP Act defines a "criminal street gang" as an
"ongoing organization, association, or group." (¤ 186.22(f).)
That "group" must have "three or more persons," and its
"primary activities" must consist of certain crimes. (Ibid.)
The same "group" must also have "a common name or common
identifying sign or symbol," and its members must be proven to have
engaged in a "pattern of criminal gang activity" by committing
predicate offenses. (Ibid.) This case requires us to decide what it
means to constitute an "organization, association, or group," as well
as how the various elements of the STEP Act's "criminal street gang"
definition affect the types of theories about a criminal street gang's
existence that the prosecution may offer. These are questions of statutory
interpretation that we must consider de novo. (Imperial Merchant Services, Inc. v.
Hunt (2009) 47 Cal.4th 381, 387 [97 Cal. Rptr. 3d 464, 212 P.3d 736].) We
apply a deferential standard of review when evaluating--as we do below (at pp.
81-85, post)--whether the
evidence in this case was sufficient to satisfy the STEP Act's definition. (See
People v. Zamudio (2008) 43 Cal.4th 327, 357 [75 Cal. Rptr. 3d 289, 181 P.3d
105].)
For
the reasons set forth below, we conclude that where 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. That connection may take the form of evidence
of collaboration or organization, or the sharing of material information among
the subsets of a larger group. Alternatively, it may be shown that the subsets
are part of the same loosely hierarchical organization, even if the subsets
themselves do not communicate or work together. And in other cases, the
prosecution may show that various subset members exhibit behavior showing their
self-identification with a larger group, thereby allowing those subsets to be
treated as a single organization. 2
2 The rule we describe in this case
applies to all STEP Act cases where the prosecution's theory of why a criminal
street gang exists turns on the conduct of one or more gang subsets, not simply
to those in which the prosecution alleges the existence of "a broader
umbrella gang." (Conc. & dis. opn. of Corrigan, J., post, at p.
91.) The STEP Act does not require prosecutors to prove that an "umbrella"
gang exists; indeed, that term appears nowhere in the statute. And in any
event, we granted review in this case to address the showing prosecutors must
make when attempting to show that "multiple subsets of the Norte–os may be
treated as a whole" under section 186.22(f). That question is not
premised upon the existence of a broader "umbrella" group.
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(b). 3 But it is not
enough, as the Court of Appeal in this case held, 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.
3 Prunty received a sentence
enhancement under section 186.22(b), which applies to felonies committed
"for the benefit of, at the direction of, or in association with any criminal
street gang." The STEP Act also imposes a substantive penalty on
"[a]ny person who actively participates in any criminal street gang with
knowledge that its members engage in or have engaged in a pattern of criminal
gang activity." (¤ 186.22, subd. (a).) Both subdivisions use the
same "criminal street gang" definition that is set forth in section
186.22(f). While this case requires us to directly address only section
186.22(b)'s sentence enhancement, we see no reason that the definition of
"criminal street gang" would vary in the context of an active
participation prosecution.
The
STEP Act's language strongly suggests that, to be part of a "criminal
street gang," subsets must share some associational or organizational connection
with the larger group, whether arising from individual members' routine
collaboration with each other or otherwise. Our task in construing the Act,
of course, is to ascertain and
effectuate the intended legislative purpose. (People v. Gardeley (1996) 14
Cal.4th 605, 621 [59 Cal. Rptr. 2d 356, 927 P.2d 713].) The text of the
statute is our starting point, and "generally provide[s] the most reliable
indicator" of the Legislature's intended purpose. (Hsu v. Abbara (1995)
9 Cal.4th 863, 871 [39 Cal. Rptr. 2d 824, 891 P.2d 804].) Here, the words
the Legislature chose to describe the collection of people who constitute a
"criminal street gang"--"organization, association, or group ...
, whether formal or informal"--contemplate some kind of relationship, or
degree of togetherness, uniting those individuals. (¤ 186.22(f).) Dictionary
definitions of "association" emphasize the existence of some
connection among members, i.e., "[a]n organized body of people who have an
interest, activity, or purpose in common" (American Heritage Dict. (4th ed.
2000) p. 109), or "an organization of persons having a common
interest" (Merriam-Webster's Collegiate Dict. (11th ed. 2003) p. 75). The
same is true of definitions of "organization," which describe, for example, "[a]
group of persons organized for a particular purpose ..." (American
Heritage Dict., supra, at p. 1239), and persons comprising a
"functional structure" (Merriam-Webster's Collegiate Dict., supra,
at p. 874). Both terms envision some measure of connection among members, such
as unity of purpose, shared activities, or other manifestations of a common
relationship.
The
same is true of the meaning associated with "group," as used in this
context. Though the term "group," standing alone, could conceivably
encompass broader collections of people--the definitions of the term include
"[a]n assemblage of persons or objects gathered or located together,"
"[a] number of individuals or things considered together because of similarities"
(American Heritage Dict., supra, at p. 776), and "a number of individuals
assembled together or having some unifying relationship"
(Merriam-Webster's Collegiate Dict., supra, at p. 552)--its use in the
STEP Act in conjunction with "organization" and
"association" suggests a meaning generally similar to--and at least
no broader than--those terms. (See People v. Arias (2008) 45 Cal.4th 169,
180 [85 Cal. Rptr. 3d 1, 195 P.3d 103].) Broadly consistent with this
approach, moreover, is the noscitur a sociis canon of construction--implying
that a word literally "is known by its associates." (Orey v.
Superior Court (2013) 213 Cal.App.4th 1241, 1252 [152 Cal. Rptr. 3d 878].)
From this perspective, the term "group" is best interpreted in light
of its semantic relationship to the terms "association" and
"organization"--terms that, together with "group," convey
the kind of shared venture that is the subject of the statute. Even if it were
conceivable that the term "group" could be understood in different
ways in this particular context, we must stop short of construing it so
expansively that we render the other terms "unnecessary or redundant ...
or ... markedly dissimilar to the other items in the list." (People ex
rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 307 [58 Cal. Rptr. 2d
855, 926 P.2d 1042].)
To
determine the evidentiary showing necessary to demonstrate that alleged subsets
are part of a single overarching organization, we must assign coherent meaning
to "organization, association, or group"--bearing in mind that these
terms are modified by the STEP Act's reference to how the shared venture in question
can be "formal or informal." (¤ 186.22(f).) This qualification
suggests that the prosecution need not show that the relationship between
subsets and a larger organization resembles, for example, the stereotypical organized
crime syndicate's hierarchical, tightly organized framework. (See U.S. v. Orena (2d Cir. 1994) 32 F.3d 704, 708
(Orena).) Such formal groups may often reflect well-defined membership
criteria, a discernible hierarchy, predictable meeting schedules and locations,
fixed membership groups, and codified rules and order. Informal groups, by contrast,
will rarely if ever display these characteristics. They need not exhibit an
identifiable hierarchy; their membership composition may be fluid; the
boundaries of their "turf" may be porous; and their methods of
communication may be variable. But they must still be united by something in
common beyond pure happenstance. Evidence--even indirect evidence--showing
collaboration among subset members, long-term relationships among members of
different subsets, use of the same "turf," behavior demonstrating a
shared identity with one another or with a larger organization, and similar
proof will show that individual subsets are part of a larger group, without
running afoul of the Legislature's decision to embrace even groups based on
informal relationships within the scope of the Act.
What
can be gleaned from the legislative history also sheds light on the Act's
scope, and accords with our conclusion. Some organizational or associational
connection, whether formal or informal, must exist among subsets of a
"criminal street gang." In setting forth its findings and
declarations concerning the STEP Act, the Legislature identified "the
organized nature of street gangs" as posing a unique threat to public
safety. (¤ 186.21.) The Legislature described this "organized
nature," and the accompanying "patterns of criminal gang
activity," as "the chief source of terror created by street
gangs" that the Legislature sought to eradicate. (Ibid.) These statements indicate
that the Legislature found criminals acting in association--however loose--to
pose a more serious threat to public safety than other criminals. The clear
purpose of the Act is to target these criminal groups in particular. (People
v. Albillar (2010) 51 Cal.4th 47, 55 [119 Cal. Rptr. 3d 415, 244 P.3d 1062]
(Albillar) ["Crimes committed by gang members ... pose dangers to
the public and difficulties for law enforcement not generally present when a
crime is committed by someone with no gang affiliation."].) At the same
time, the Legislature evidently wanted the STEP Act to apply to groups with
looser associations than traditional criminal conspiracies. Criminal
conspiracies require proof of various elements--such as a specific agreement
and the commission of an overt act--that the STEP Act does not require. The Legislature
apparently intended that the STEP Act would reach significantly beyond such
traditional forms of organized criminal activity. This background suggests that
we read the STEP Act as the Legislature's attempt to strike a reasonable
balance in targeting criminal street gang activity: to sweep more broadly than
traditional conspiracy law, but still to focus on the particular dangers
stemming from informally organized criminal activity.
The
Act's structure also sheds light on the need for an informal connection uniting
subsets into a single group. In particular, the structure helps make clear what
sort of evidence will not be sufficient, standing alone, to show that a
single group exists. The Act indicates that a group must be united by more than
shared colors, names, and other symbols. Section 186.22(f) provides that
a "criminal street gang" must satisfy several requirements, including
the separate requirements that the members comprise an "ongoing
organization, association, or group" and share a "common name or common
identifying sign or symbol." Because the STEP Act separately identifies a
"common name or common
identifying sign or symbol" as a hallmark of a criminal street
gang, we must read the phrase "ongoing organization, association, or
group" as a distinct requirement. (Ibid.) To do otherwise would
effectively--and improperly--read the latter phrase out of the Act entirely. (Horwich
v. Superior Court (1999) 21 Cal.4th 272, 280 [87 Cal. Rptr. 2d 222, 980 P.2d
927].) The STEP Act's "organization, association, or group" requirement
must consequently be satisfied by evidence that goes beyond proof that three or
more persons share a "common name or common identifying sign or symbol."
(¤ 186.22(f).)
Nor
does the Act's text or structure support the conclusion that a common enemy (or
similar evidence of a loose common ideology) is enough to demonstrate that
various subsets are part of a single criminal street gang. The Act's use of the
phrase "organization, association, or group" suggests that subsets of
a criminal street gang must be united by their activities, not simply by their
viewpoints. (¤ 186.22(f).) Those words suggest a degree of physical
togetherness or the engagement in common activities, rather than an isolated
matter on which members of different subsets share the same viewpoint. Those
terms also suggest that shared ideology is a poor proxy for whether a group in
fact exists. For instance, all animal lovers are not members of the American Society
for the Prevention of Cruelty to Animals (ASPCA), even though all members of
the ASPCA might love animals. They may share a common ideology, but only the
latter have taken active steps to come together and associate with one another.
We must know more about any given collection of animal lovers--their location
and their activities, for instance--to determine whether they are a true
"organization, association, or group." Though the formality of an
organization may diminish in the criminal street gang context, the need for
evidence of activities rather than shared viewpoint is no different. Members of
various subsets may share similar viewpoints--for instance, opposition to Sure„o
gang members--and may also wear similar colors or use common identifying
symbols. But the STEP Act makes clear that the use of common colors and symbols
does not demonstrate the existence of a unified group. Evidence of a common viewpoint
also fails to show that subsets have any other relationship that unites them.
How prosecutors could prove the existence
of such relationships is also illuminated by the Act's text and structure. The
prosecution's evidence must permit the jury to infer that the "gang"
that the defendant sought to benefit, and the "gang" that the prosecution
proves to exist, are one and the same. The Act imposes a sentence enhancement
on "any person who is convicted of a felony committed for the benefit of,
at the direction of, or in association with any criminal street gang."
(¤ 186.22(b), italics added.) That gang is defined in section
186.22(f), which provides that the gang must consist of "three or more
persons" who have as one of their "primary activities the commission
of" certain enumerated criminal acts; who share "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." Thus, the Act requires that the gang the defendant sought to
benefit, the individuals that the prosecution claims constitute an
"organization, association, or group," and the group whose actions
the prosecution alleges satisfy the "primary activities" and
predicate offense requirements of section 186.22(f), must be one and the
same.
Indeed, as the STEP Act defines a
criminal street gang as one whose members engage in a pattern of criminal gang
activity, it is axiomatic that those who commit the predicate acts must belong
to the same gang that the defendant acts to benefit. In light of this
"sameness" requirement, the prosecution need not demonstrate the precise
scope of an alleged gang, but it must allow the jury to reasonably infer that
the "criminal street gang" the defendant sought to benefit--or which
directed or associated with the defendant--included the "group" that
committed the primary activities and predicate offenses.
In
contrast, the Court of Appeal's conclusion that "smaller neighborhood
subsets" may be treated as a single "criminal street gang" based
simply on evidence that the subsets share a "common name ... [or] common
identifying signs and symbols" is not consistent with the STEP Act's
requirements. The Act's text, purpose, and structure all support a construction
of section 186.22(f) that requires the prosecution to show that a
"criminal street gang" exhibits some level of informal association
among its members. And the Act itself provides limits on how the prosecution
can make such a showing--i.e., with proof transcending the mere existence of a
common name (or other identifying symbols) used by various individuals, or a
common ideology that appears to be present among otherwise disconnected people.
The prosecution has the discretion to choose its theory of how a particular
gang exhibits an associational or organizational connection. Irrespective of
that choice, the evidence must permit the jury to infer a relationship among
the group's members. 4 Below, we offer some illustrative examples of
how the prosecution can show a criminal street gang to exist, particularly when
the theory advanced is that various alleged gang subsets should in fact be
treated as a single entity for purposes of the STEP Act.
4 We disagree with the Court of
Appeal--and with the Attorney General--that our interpretation of section
186.22(f) adds "an element to the statute that the Legislature did not
put there." Our holding is rooted in the text of section 186.22(f)
and is substantiated by other evidence of the Legislature's intent to target
only those groups bearing some indicia of organized criminal activity. This
interpretation is consistent with other cases construing the STEP Act, in which
we have likewise focused on the statutory language, the legislative purpose,
and the likely consequences of a particular interpretation. (People v.
Sengpadychith (2001) 26 Cal.4th 316, 323-324 [109 Cal. Rptr. 2d 851, 27 P.3d
739]; People v. Castenada (2000) 23 Cal.4th 743, 751-752 [97 Cal. Rptr.
2d 906, 3 P.3d 278]; People v. Loeun (1997) 17 Cal.4th 1, 10-11 [69
Cal.Rptr.2d 776, 947 P.2d 1313] (Loeun); People v. Gardeley, supra,
14 Cal.4th at pp. 620-622.)
A.
Examples of Organizational and Associational Connections
In
describing some of the circumstances that may show an organizational or
associational connection, we are mindful that groups involved in illicit activity
may exhibit starkly different degrees of formal organization. In certain cases,
gangs may constitute loosely coupled, amorphous organizations that routinely
operate covertly. (People v. Valdez (1997) 58 Cal.App.4th 494, 506-507 [68
Cal. Rptr. 2d 135]; see People
v. Ortega (2006) 145 Cal.App.4th 1344, 1357 [52 Cal. Rptr. 3d 535] (Ortega).)
Prosecutors need not--and in some cases, could not--show that these groups
resemble formally structured, hierarchical enterprises such as businesses or
professional associations. We are also cognizant that the STEP Act's definition
of "criminal street gang" embraces "formal or informal" associations.
(¤ 186.22(f).) Finally, we do not intend to place limits on the theories
that the prosecution may advance in
attempting to show that various neighborhood-based groups in fact constitute a
single "criminal street gang" within the Act's meaning. We offer the
following as illustrative examples for the Courts of Appeal and trial courts,
and not to circumscribe the ability prosecutors have to show the necessary
connection in other ways.
The
most straightforward cases might involve subsets connected through formal ways,
such as shared bylaws or organizational arrangements. Evidence could be
presented, for instance, that such subsets are part of a loose approximation of
a hierarchy. Even if the gang subsets do not have a formal relationship or
interact with one another--indeed, even if they are unaware of one another's
activities--the subsets may still be part of the same organization if they are
controlled by the same locus or hub. For example, Norte–o gang subsets may be
treated as a single organization if each subset contains a "'shot
caller[]'" who "answer[s] to a higher authority" in the Norte–o
chain of command. (Williams, supra, 167 Cal.App.4th at p. 988; see People
v. Tran (2011) 51 Cal.4th 1040, 1044 [126 Cal. Rptr. 3d 65, 253 P.3d 239].)
Subsets
may also be linked together as a single "criminal street gang" if
their independent activities benefit the same (presumably higher ranking) individual
or group. An example would be various Norte–o subset gangs that share a cut of
drug sale proceeds with the same members of the Nuestra Familia prison gang.
More indirect evidence may also show that distinct gang subsets are
organizationally linked. For instance, proof that different Norte–o subsets are
governed by the same "bylaws" may suggest that they function--however
informally--within a single hierarchical gang. (In re Jose P. (2003) 106
Cal.App.4th 458, 463 [130 Cal.Rptr.2d 810].) Alternatively, evidence that
two seemingly unrelated Norte–o cliques routinely act to protect the same
territory or "turf" could suggest that they are part of a larger
association. Similarly, proof that several gang subsets conduct independent,
but harmonious, criminal operations within a discrete geographical area may
show that they are part of a single entity whose bosses have divided up a
larger territory. (See People v. Robinson (2012) 208 Cal.App.4th 232, 239
[145 Cal. Rptr. 3d 364] [describing testimony that "several Project
Trojans gang subsets" conducted "independent narcotics sales operations"
within a "13-block area of North Richmond"].)
In
other situations, a formal structure or hierarchy may not be present, but the
facts may suggest the existence of behavior reflecting such a degree of
collaboration, unity of purpose, and shared activity to support a fact finder's
reasonable conclusion that a single organization, association, or group is
present. One possibility in such situations is for prosecutors to show that
members of the various subsets collaborate to accomplish shared goals. For
instance, the evidence may show that members of different subsets have
"work[ed] in concert to commit a crime" (Ortega, supra, 145
Cal.App.4th at p. 1357), 5 or that members have strategized,
formally or informally, to carry
out their activities. Ultimately, this type of evidence will permit the
inference that the subsets have some sort of informal relationship. This evidence
need not be direct, and it need not
show frequent communication or a hierarchical relationship among the members
who communicate. For instance, evidence that two Norte–o subsets have professed
or exhibited loyalty to one another would be sufficient to show that the two
subsets collaborate or cooperate. (In re Jose P., supra, 106 Cal.App.4th at
p. 463.) So too would evidence of fluid or shared membership among the subset
or affiliate gangs, or evidence that a "liaison" works to coordinate
relations between the groups. (Williams, supra, 167 Cal.App.4th at p. 988.)
5 The Court of Appeal in this case
relied on Ortega, supra, 145 Cal.App.4th 1344 and In re Jose P.,
supra, 106 Cal.App.4th 458. Neither case purported to require proof of an
organizational or associational connection to show the existence of a single
criminal street gang. We disapprove People v. Ortega, supra, 145 Cal.App.4th
1344 and In re Jose P., supra, 106 Cal.App.4th 458, to the extent
they are inconsistent with our holding here. Nevertheless, we note that the
prosecution's evidence in those cases was likely sufficient to satisfy the
framework we lay out here. We refer to that evidence here for illustrative
purposes.
Even
evidence of more informal associations, such as proof that members of two gang
subsets "hang out together" and "back up each other," can
help demonstrate that the subsets' members have exchanged strategic information
or otherwise taken part in the kinds of common activities that imply the
existence of a genuinely shared venture. (People v. Louie (2012) 203
Cal.App.4th 388, 394 [136 Cal. Rptr. 3d 646]; see In re I. M. (2005) 125
Cal.App.4th 1195, 1201 [23 Cal. Rptr. 3d 375].) This type of evidence
routinely appears in gang enhancement cases. (See People v. Hairston (2009)
174 Cal.App.4th 231, 237, fn. 4 [94 Cal. Rptr. 3d 159] [describing
testimony that "it was very common for members of different gang subsets
to intermingle and hang out together ..."].) In general, evidence that
shows subset members have communicated, worked together, or share a
relationship (however formal or informal) will permit the jury to infer that
the subsets should be treated as a single street gang.
Where
groups lack identifiable hierarchy or similar signs of organization, the
prosecution could also demonstrate that various alleged gang subsets manifest
specific behavior that is relevant to whether they are part of a single
"organization, association, or group." They may, for example,
mutually acknowledge one another as part of that same organization, and
evidence may be presented that the organization in question tends to operate in
decentralized fashion and in the relevant geographic area. This approach is
premised on the fact that members of loosely organized criminal associations
may not always evince the amount of openly observable collaborative activity
that one might ordinarily perceive in entities dedicated to pursuing lawful
activities. But this reality can be reconciled with the STEP Act's provisions
requiring the presence of a unitary "organization, association, or
group" through evidence of group members' behavior suggesting shared
identification with a single group, along with evidence of the alleged group's
characteristics. For instance, evidence that two members of different neighborhood
subsets have engaged in activities suggesting that they identify one another as
belonging to the same criminal street gang could be relevant to showing that
the subsets form a single group. Such evidence, coupled together with
appropriate evidence that a gang exists, that it operates within a particular
geographic area, and that it conducts its activities through subsets or in
another decentralized fashion, could permit the inference that the different
subsets are members of a single group.
But
there are some limits on the boundaries of an identity-based theory. The
evidence must demonstrate that an organizational or associational connection
exists in fact, not merely that a local subset has represented itself as an
affiliate of what the prosecution asserts is a larger organization. (See conc.
& dis. opn. of Corrigan, J., post, at p. 93.) Although evidence of self-identification
with the larger organization may be relevant, the central question remains
whether the groups in fact constitute the same "criminal street
gang." In making the required showing, moreover, the prosecution must do
more than simply present evidence that various alleged gang subsets are found
within the same broad geographic area. For instance, that the various alleged
gang subsets in this case were located "all over Sacramento" does not
show that the subsets constituted a single criminal street gang. The
prosecution must introduce evidence of the alleged subsets' activities, showing
a shared identity that warrants treating them as a single group. Such evidence
could come in the form of proof that a certain Norte–o subset retaliates
against a Sure„o gang for affronts that gang has committed against other Norte–o subsets. Behavior of this
kind could suggest that members of the Norte–o subset consider themselves to be
part of a larger association. Or the prosecution could introduce evidence
showing that different subsets require their members to perform the same
initiation activities. Evidence of this common behavior may be some evidence
that members identify themselves as belonging to the same gang. The key is for
the prosecution to present evidence supporting a fact finder's reasonable conclusion
that multiple subsets are acting as a single "organization, association,
or group." (¤ 186.22(f).) Evidence of self-identification must
refer to the particular activities of subsets, and must permit the jury to
reasonably conclude that the various subsets are associated with each other
because of their shared connection with a certain group. And where, as in this
case, the alleged perpetrators of the predicate crimes under section
186.22(f) are members of particular subsets, the behavior of those subsets'
members must connect them to the gang the defendant sought to benefit.
Because
criminal street gangs may vary in size, scope, and degree of informality, the
circumstances of a given case may lead the prosecution to seek different ways
of establishing that a particular gang meets the requirements of section
186.22(f). For example, when a defendant commits a crime to benefit a
particular subset, and the prosecution can show that the subset in question
satisfies the primary activities and predicate offense requirements, there will
be no need to link together the activities of various alleged cliques; nor is
there likely to be uncertainty about what the relevant "criminal street
gang" is. Indeed, our cases suggest that many gang-related prosecutions
involve the conduct of discrete criminal street gangs and do not turn on the
relationship between alleged gang subsets. (See, e.g., Albillar, supra, 51
Cal.4th at pp. 52-53; Loeun, supra, 17 Cal.4th at p. 6.)
Regardless
of the theory the prosecution chooses, there is no requirement that the subset
gangs have peaceably coexisted for them to constitute a single organization.
Prunty claims that "subset Norte–o gangs were often in fierce rivalry with
one another--not working together for any common Norte–o purpose." He
asserts that this evidence prohibits the inference that the alleged subsets
were part of a single group. We disagree that evidence of conflict among gangs
will defeat other evidence of an organizational or associational connection.
Just as proof of "internecine warfare" among various factions does
not defeat proof that a single criminal "enterprise" exists (Orena,
supra, 32 F.3d at p. 710), evidence that subset gangs have periodically
been at odds does not necessarily preclude treating those gangs collectively under the STEP
Act--particularly since, as discussed above, the STEP Act applies more broadly
than traditional criminal enterprise law.
What
section 186.22(b) does require is that the "criminal street
gang" the prosecution proves to exist be the same gang that the defendant
sought to benefit (or which directed or associated with the defendant in connection
with the crime). (At pp. 75-76, ante.) This "sameness"
requirement means that the prosecution must show that the group the defendant
acted to benefit, the group that committed the predicate offenses, and the
group whose primary activities are introduced, is one and the same. This
showing is critical in a case, like this one, where the prosecution's theory of
a criminal street gang turns on the activities of two or more alleged gang subsets.
In such a case, the evidence the prosecution introduces to show an organizational
or associational connection must be sufficient to show that the "criminal
street gang" at issue includes those particular subsets. For instance, suppose
that the prosecution's theory of a case is that a defendant committed a felony
to benefit the Los Angeles Sure„o street gang. The prosecution alleges that the
Sure„o gang operates through subsets in the Los Angeles area, and it introduces
evidence that two subsets--the Sur Santos Pride subset and the Vario Locos
Trece subset--share the same territory. But to prove the predicate offense
element of the STEP Act, the prosecution introduces evidence of crimes
committed by two other alleged Sure„o
subsets, the Southside and Loma Baker subsets. Absent more evidence, it is
impossible for the jury to infer that the Sure„o gang the defendant wished to
benefit includes any of these alleged subsets. Nor could the jury permissibly
infer from this evidence, on its own, that the Southside and Loma Baker subsets
have any relationship with the Sur Santos Pride and Vario Locos Trece subsets.
One way the prosecution could solve this problem, for example, would be to introduce
evidence of a relationship among all four alleged subsets--a relationship that
would permit the inference that they constitute a single Sure„o organization.
Or the prosecution could show some connection among the Southside and Loma
Baker subsets and the Sure„o gang the defendant intended to benefit. The
prosecution need not establish the metes and bounds of that Los Angeles Sure„o
gang, or show an organizational or associational connection that unites all
alleged gang subsets in the area. But it must have a theory of the
"criminal street gang" at issue that shows the same group to satisfy
all elements of the STEP Act.
B.
Sufficiency of the Evidence in This Case
Reviewing
the evidence in light of the framework we have set forth, we find that the
prosecution failed to prove the existence of a single "criminal street
gang" within the STEP Act's meaning that fit the prosecution's theory of
why the gang enhancement applied in this case. The critical shortcoming in the
prosecution's evidence was the lack of an associational or organizational connection
between the two alleged Norte–o subsets that committed the requisite predicate
offenses, and the larger Norte–o gang that Prunty allegedly assaulted Manzo to
benefit. The evidence was not sufficient to permit the jury to infer that the
organization, association, or group at issue included the subsets that
committed the predicate offenses.
The
prosecution's theory underlying the gang enhancement charge was that Prunty
assaulted Manzo to benefit the Sacramento-area Norte–os. 6 This decision
dictated the type of evidence the prosecution needed to introduce showing that
the Sacramento-area Norte–os satisfy section 186.22(f): the prosecution
needed to show that the same group engaged in illicit primary activities, and
committed the predicate offenses. The prosecution's evidence as to the former
requirement was likely sufficient; Sample testified that "the Norte–os"
in the area engage in various criminal practices, including homicide, assault,
and firearms offenses.
6 At the same time, the prosecution
presented evidence demonstrating that Prunty identified as a member of a
particular alleged Norte–o subset--the Detroit Boulevard Norte–os. The ample evidence
that Prunty claimed membership in the Detroit Boulevard Norte–os was likely
sufficient for the jury to infer that Prunty intended to benefit that group;
Prunty affirmatively declared that he "claim[ed] Norte" and that
Detroit Boulevard was his "set." This evidence could likely support
the conclusion that Prunty intended to benefit the Detroit Boulevard Norte–os.
But the prosecution did not so argue, and in any event did not introduce any
evidence attempting to connect the Detroit Boulevard group to any of the other
alleged subsets in the case. Thus, the possibility that the jury could have
believed the Detroit Boulevard subset to be the putative "criminal street
gang" at issue does not change our conclusion.
But
where the prosecution's evidence fell short is with respect to the predicate
offenses. Sample referred to two offenses involving three alleged Norte–o
subsets: a confrontation between the Varrio Gardenland Norte–os and members of
the Del Paso Heights Norte–os that escalated into a fatal shooting; and a
shooting by members of the Varrio Centro Norte–os that resulted in the death of
a "drop-out Norte–o." Although Sample characterized these groups as Norte–os,
he otherwise provided no evidence that could connect these groups to one another,
or to an overarching Sacramento-area Norte–o criminal street gang. Sample did
not describe any evidence tending to show collaboration, association, direct
contact, or any other sort of relationship among any of the subsets he described.
None of his testimony indicated that any of the alleged subsets had shared information,
defended the same turf, had members commonly present in the same vicinity, or
otherwise behaved in a manner that permitted the inference of an associational
or organizational connection among the
subsets. Contrary to the minority opinions' suggestions, we should
neither speculate to fill evidentiary gaps (conc. & dis. opn. of Corrigan,
J., post, at p. 94), nor defer to the jury's findings when there is no
reasonable basis to do so (conc. & dis. opn. of Cantil-Sakauye, C. J., post,
at pp. 88-89; see pp. 84-85, post).
Nor
did Sample's testimony demonstrate that the subsets that committed the
predicate offenses, or any of their members, self-identified as members of the
larger Norte–o association that defendant sought to benefit. Although there was
ample evidence that Prunty self-identified as both a member of the Detroit
Boulevard Norte–os and the larger umbrella Norte–o gang, and that he
collaborated with a member of another subset to commit his present offenses,
the prosecution presented no evidence that the members of the Varrio Gardenland
and Varrio Centro Norte–os self-identified as part of the umbrella Norte–o gang.
Sample testified about the Sacramento Norte–os' existence and their presence
"all over Sacramento" with "subsets based on different neighborhoods."
But Sample never addressed the Norte–o gang's relationship to any of the subsets
at issue. And in describing the two alleged subsets that committed the predicate offenses, Sample
offered no evidence that their members behaved in a manner that conveyed their
identification with the larger association that Prunty sought to benefit. Instead,
Sample simply described the subsets by name, characterized them as Norte–os,
and testified as to the alleged predicate offenses. 7 He offered no
additional information about their behavior or practices that could reasonably
lead the jury to conclude they shared an identity with a larger group. The jury
was consequently left with no way to connect the subsets that committed the
predicate offenses to the larger Norte–o group the prosecution claimed Prunty
acted to benefit.
7 To the contrary, Sample's
testimony described conflict among the Norte–o subsets he described. While this
testimony would not prevent a jury from concluding that the subsets are
associated (at p. 80, ante), it suggests that the fact finder could not
place too much weight on the mere fact that the subsets called themselves
"Norte–os."
Sample
did testify that "Norte–o street gangs" are "associate[d]"
with the Nuestra Familia prison gang. While such evidence might permit the inference
that the various alleged gang subsets share a common origin, it does not indicate
whether the specific 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 entity defendant sought to benefit. Sample did not
testify, for instance, about any relationship between Nuestra Familia shot
callers and any of the Sacramento-area Norte–o subsets. While he did reference
"written" and "unwritten" rules that govern "what gang
members can and can't do," he did not explain whether these rules applied
to the particular subsets in this case.
Certain
evidence relevant to the gang enhancement inquiry is indeed found in some of
Sample's additional testimony. But it was nonetheless insufficient to show the
existence of a single "criminal street gang" encompassing both the
group Prunty sought to benefit and the specific subsets whose members committed
the predicate offenses. Sample testified that Norte–o gang subsets use the same
name, symbols, and colors; use similar gang signs, tattoos, graffiti, and other
methods of communication; wear similar clothing and colors; and are united in
their opposition to Sure„o gang members. But this evidence tends to show that
the alleged subsets use common symbols or common identifying colors and thereby
fulfill the element of section 186.22(f) requiring such common
characteristics; it does not show that the subsets are united together or with
a larger group as a single "organization, association, or group," as
we have explained above. (At pp. 74-85, ante.) In any event, none of
Sample's testimony addressed whether the subsets whose members committed the
predicate offenses were among those that exhibited even these common
characteristics. That Prunty
claimed gang membership--including membership in the Norte–o gang the
prosecution alleged he acted to benefit when assaulting Manzo--is also evident
from some of Sample's testimony. But we have previously noted that evidence of
gang membership is "neither necessary nor sufficient to establish any element
of the gang enhancement." (People v. Valdez (2012) 55 Cal.4th 82, 132
[144 Cal. Rptr. 3d 865, 281 P.3d 924].) In this context, evidence that
Prunty claimed gang membership bears on what his intent may have been in
committing the assault. But the evidence provided no way for the jury to determine
that the Norte–os were an
"organization, association, or group" under the STEP Act's meaning--or,
critically, that the alleged subsets that committed the predicate offenses were
part of that group.
To
be sure, the prosecution did introduce some evidence of collaboration between
members of different gang subsets--namely, Prunty and his companion Emilio
Chacon. Sample testified that Chacon was a member of the Varrio Franklin
Boulevard Norte–os. Prunty met up with Chacon earlier on the day of the
shooting, and the two planned to steal a bottle of liquor from a supermarket in
the shopping center where the shooting took place. Chacon was also at least
tangentially involved in the confrontation with Manzo. While this evidence
shows collaboration, it does not establish the necessary connection to the Norte–o
subsets that committed the predicate offenses. Sample did not testify as to any
relationship between the Varrio Franklin Boulevard subset and either of the two
alleged subsets that committed the predicate offenses. And while the
relationship between Chacon and Prunty is some evidence of a larger
Sacramento-area Norte–o group, the prosecution's case still lacks evidence
connecting the Varrio Gardenland and Varrio Centro cliques to that group. The
absence of this necessary connection precludes application of the gang enhancement
here.
It
is also true that Sample testified extensively about "the Norte–os"
and described them as a criminal street gang. He testified as to the group's
size, its geographic location, and its general practices. While this evidence
was surely relevant to the gang enhancement's application, Sample's characterization
of a group as a "criminal street gang" is insufficient absent some
reason to believe that conclusion was based on the evidence necessary to show a
single criminal street gang to exist as the STEP Act defines it. The dissent
claims that Sample's testimony provided just such a reason. (Conc. & dis.
opn. of Cantil-Sakauye, C. J., post, at pp. 89-90.) Yet Sample's
statements describing "the Norte–os" as "a Hispanic street
gang" are--for purposes of showing a criminal street gang to exist (id.
at p. 88)--purely conclusory and essentially of no use to the fact finder. (See
Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th
1108, 1117-1118 [8 Cal. Rptr. 3d 363].) Sample did not describe any facts
tending to show an organizational or associational connection among the Norte–o
subsets he described, nor did he articulate any reasons for concluding that all
such subsets are part of a single criminal street gang. Nor did Sample describe
the material he relied on in reaching his conclusions--implicit or otherwise
(conc. & dis. opn. of Cantil-Sakauye, C. J., post, at p. 88)--about
the Varrio Gardenland and Varrio Centro subsets and their relationship to one
another or a larger group. Thus, his testimony on this point had no value to
the jury. (See People v. Lawley (2002) 27 Cal.4th 102, 132 [115 Cal. Rptr.
2d 614, 38 P.3d 461].) The jury could not have relied on Sample's testimony
to find that the prosecution established the existence of a criminal street
gang here.
Although
we find the evidence here insufficient to qualify Prunty for the gang
enhancement, nothing in this opinion reflects any skepticism regarding the
general factual question of whether the Norte–os exist--a question that amicus
curiae Pacific Juvenile Defender Center asks that we resolve in the negative.
We have previously upheld gang enhancements where the "criminal street
gang" in question was a geographically dispersed group. (See People v. Brookfield (2009) 47
Cal.4th 583, 587 [98 Cal. Rptr. 3d 535, 213 P.3d 988].) While we find the
evidence here insufficient, nothing
in our opinion reflects doubt that prosecutors can prove the existence of such
a criminal street gang when the evidence supports such a conclusion. The only
evidentiary question before us is whether the prosecution--consistent with the
theory it advanced regarding what constituted the relevant "criminal
street gang"--presented sufficient proof in this case.
III. Disposition
We
conclude that section 186.22(f)'s definition of a "criminal street
gang"--and in particular its requirement of an "organization,
association, or group"--calls for evidence that an organizational or
associational connection unites the "group" members. When, as here,
the prosecution relies on the conduct of subsets to show a criminal street
gang's existence, the prosecution must show a connection among those subsets,
and also that the gang those subsets comprise is the same gang the defendant
sought to benefit. Because the decision below does not accord with this
standard, we reverse the Court of Appeal's judgment as to defendant Prunty's
sentence and remand for further proceedings not inconsistent with this opinion.
Werdegar,
J., Liu, J., and Kruger, J., concurred.
CONCUR
BY: Cantil-Sakauye (In Part); Corrigan (In
Part)
DISSENT
BY: Cantil-Sakauye (In Part); Corrigan (In
Part)
DISSENT
CANTIL-SAKAUYE,
C. J., Concurring and Dissenting.--This case
was a classic gang crime. It was a confrontation between two Sacramento Norte–os
and a Sacramento Sure„o in a shopping plaza parking lot in an area claimed by
the Norte–os, which escalated from the exchange of Norte–os and Sure„os gang
slurs into a shooting that seriously injured multiple individuals, including an
innocent young child. Surely, this is the very type of gang crime at
which the STEP (California Street Terrorism Enforcement and Prevention) Act
was aimed. (Pen. Code, ¤ 186.21; 1 People v. Rodriguez
(2012) 55 Cal.4th 1125, 1129 [150 Cal. Rptr. 3d 533, 290 P.3d 1143]; People
v. Albillar (2010) 51 Cal.4th 47, 55 [119 Cal. Rptr. 3d 415, 244 P.3d 1062].)
Not surprisingly, the jury found defendant committed the underlying crimes
"for the benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote, further, or assist
in any criminal conduct by gang members." (¤ 186.22, subd. (b)(1).)
1 All further statutory references
are to the Penal Code unless otherwise indicated.
When
a reviewing court considers a claim that the evidence is insufficient to
support a verdict, it considers the entire record in the light most favorable
to the prosecution and presumes in support of the verdict the existence of
every fact the jury could reasonably have deduced from the evidence. (People
v. McCurdy (2014) 59 Cal.4th 1063, 1104 [176 Cal. Rptr. 3d 103, 331 P.3d 265].)
Applying this standard here, I disagree with my colleagues who conclude that
there is insufficient evidence in the record to support the jury's true finding
on the gang enhancement. The circumstances of the crime and the unchallenged
testimony of the prosecution's expert, Detective John Sample, sufficiently
established the necessary links between defendant, Emilio Chacon, the predicate
crime gang members and the Sacramento Norte–os.
Evidence
was admitted at trial in this case that defendant identified himself, in an
interview with law enforcement, as a "Norte" or a "Northerner"
who "claimed" the Detroit Boulevard neighborhood of Sacramento as his
"set." He told officers
that he started claiming the Northerners when he was in seventh grade
after some gang-related trouble in school. He explained that he claimed Norte
because all of his family, on his maternal side, were Northerners. Prior to the
events of November 26, 2010, defendant had been involved in a number of
confrontations with Sacramento Sure„os gang members, including one incident
involving an exchange of gunfire with individuals wearing clothing associated
with the Sure„os. Defendant possessed Norte–o graffiti, images, clothing, and
other paraphernalia consistent with Norte–o gang membership, some relating to
the Varrio Diamonds neighborhood set of the Norte–os.
On
the evening of November 26, 2010, defendant was in the company of Emilio
Chacon. Chacon was a Sacramento Norte–o
with the Varrio Franklin Boulevard subset. Chacon's body was tattooed
with symbols and the number 14, associated with the Norte–os. Defendant and
Chacon had traveled from their own southern area of Sacramento to an area near
a Panda Express restaurant in midtown Sacramento intending to go into the
nearby Safeway store to steal a bottle of brandy. The neighborhood they were in
was territory claimed by the Varrio Centro Norte–os and the Southside Park Norte–os.
Defendant was wearing clothing in the red color typically associated with the Norte–os.
In
the parking lot, defendant and Chacon encountered and confronted Gustavo Manzo,
who was wearing attire typically associated with the Sure„os and who was in
fact a validated Sure„os gang member. Both defendant and Chacon called out
terms and phrases such as "Norte," "Northerner," "this
is Norte," "fuck a Skrap, 916 [Sacramento's regional telephone area
code]," and "fucking Skrap, 916." Defendant did not yell
"Detroit Boulevard" or any variant and Chacon did not yell
"Varrio Franklin Boulevard" or any variant. They both claimed the Norte–os
gang that connected them together, challenging a perceived Sure„o who was in
territory claimed by the Sacramento Norte–os. In response, Manzo and his
girlfriend called defendant and Chacon "Busters," a general
derogatory term for Norte–os used by Sure„os. The confrontation escalated with
defendant throwing gang signs and exchanging with Manzo further derogatory gang
slurs. It culminated in defendant drawing a gun and shooting Manzo and Manzo's
girlfriend's 10-year-old brother.
Under
these circumstances, the prosecution reasonably sought to prove the existence
of a Sacramento Norte–os criminal street gang and that defendant's crimes were
committed for the benefit of that gang.
I
agree with Justice Corrigan that the specific and narrow issue presented in
this case is what evidence is necessary to prove a criminal street gang
enhancement when the prosecution proffers evidence that a defendant committed a
felony to benefit a street gang that operates through subsets, but the
predicate offenses are committed by members of a subset of such gang. (Conc.
& dis. opn. of Corrigan, J., post, at p. 91.) I disagree, however,
that the evidence admitted in this case, notably unchallenged by the defense at
trial, was insufficient.
For
the purpose of proving the existence of a Sacramento Norte–os criminal street
gang, the prosecution called Sacramento Police Department Detective John Sample
as its expert witness on Hispanic gangs. After Sample testified to his
extensive training, experience and previous testimony as an expert witness on
Hispanic street gangs and gang culture, the defense declined voir dire and the
trial court accepted him as a
qualified expert witness on the subject.
Sample
testified that "the Norte–os" are "a Hispanic street gang
active in Sacramento and throughout California" with approximately 1,500
local members in Sacramento. (Italics added.) Sample testified that the Sacramento
Norte–os do not have a general "turf." Rather, the members are
"all over Sacramento, from north and south." He explained, however,
that there are "subsets based on different neighborhoods," which the
members will "claim." Asked to give the jury an idea of their common
identifying names, signs or symbols, Sample testified that because Norte–o was
Spanish for north, the Norte–os use "derivatives of the north, Norte–os,
northerner." They also use the letter N. And because N is the 14th letter
of the alphabet, they also use the number 14 or derivatives of it such as one
and four dots or the Roman numeral XIV. According to Sample, the color typically
associated with Norte–os is the color red. The primary enemies of the Norte–os
are Sure„os gang members. Sample testified that the Sure„os are "a
street gang just like the Norte–os." (Italics added.) They identify
themselves with the color blue, the letters S and M, and the number 13 with its
derivatives. Sample described the "primary activities" of the
Sacramento Norte–os as unlawful homicide, attempted murder, assault, firearms
offenses, and weapons violations.
The
prosecution then asked Sample if he would agree that the Norte–os in the
Sacramento area engage in a pattern of criminal activity. He responded, "Yes."
(Italics added.) Asked to give a couple of examples of "that
criminal activity" (italics added), i.e., the predicate crimes of the
Sacramento Norte–os, Sample described his investigation of a homicide that
occurred on August 19, 2007, in which Varrio Gardenland Norte–os
"subset" gang members shot three gang members from the Del Paso
Heights Norte–os "subset," killing one of them. Sample agreed that
the incident was an example of "in-house" "Norte–o on Norte–o"
crime. Sample also described a 2010 incident in which several members of the
Varrio Centro Norte–os "subset" (in whose territory defendant's
crimes occurred) shot at a "drop-out Norte–o gang member." Sample's
expert testimony, given in response to the question of whether "the Norte–os
in the Sacramento area" engage in a pattern of criminal activity, implicitly,
but clearly, linked the Varrio Gardenland Norte–os subset and the Varrio Centro
Norte–os subset involved in the described predicate crime incidents to the
Sacramento Norte–os. His testimony expressed his opinion that the predicate
crimes were committed by and on behalf of the Sacramento Norte–os. Implicitly,
the testimony also expressed his opinion that the predicate crime subsets considered
themselves to be and acted as part of the Sacramento Norte–os.
Sample
went on to describe how a shooting such as the one in this case would be
intended to benefit the Norte–os by enhancing their reputation for violence and
ruthlessness.
Sample
was asked, during cross-examination, to explain the genesis of the north/south
rivalry between the Norte–os and Sure„os gangs. In response, Sample testified
that the two groups evolved from prison gangs active from at least the 1960s
and 1970s. According to Sample, the Mexican Mafia was one of the strongest
prison gangs. It would often victimize Latino inmates who were not part of the
gang culture. Eventually, Latino inmates who were not part of the Mexican Mafia
formed their own prison gang which they called the Nuestra Familia, which means
"our family" in Spanish. Sample testified that the prison rivalry eventually "poured
out into the streets." Outside prison, those who identified with Nuestra
Familia called themselves Norte–os and those who identified with the Mexican
Mafia called themselves Sure„os.
Viewing
this record, as we must, in the light most favorable to the judgment (People
v. McCurdy, supra, 59 Cal.4th at p. 1104; People v. Rountree (2013) 56
Cal.4th 823, 852-853 [157 Cal. Rptr. 3d 1, 301 P.3d 150]), there is
evidence that is reasonable, credible, and of solid value from which a rational
trier of fact could find that the Sacramento Norte–os is a criminal street
gang. Indeed, the very case the majority cites for the deferential standard of
review when evaluating the sufficiency of evidence (maj. opn., ante, at
p. 71, citing People v. Zamudio (2008) 43 Cal.4th 327 [75 Cal. Rptr. 3d 289,
181 P.3d 105]) reminds us that "[a] reversal for insufficient evidence
'is unwarranted unless it appears "that upon no hypothesis whatever is
there sufficient substantial evidence to support" ' the jury's
verdict." (Zamudio, at p. 357.) "'We do not reweigh evidence
or reevaluate a witness's credibility.'"(People v. Scott (2011) 52
Cal.4th 452, 487 [129 Cal. Rptr. 3d 91, 257 P.3d 703].) "'Moreover,
unless the testimony is physically impossible or inherently improbable, testimony
of a single witness is sufficient to support a conviction.'" (People v.
Brown (2014) 59 Cal.4th 86, 106 [172 Cal. Rptr. 3d 576, 326 P.3d 188].)
"Testimony in the form of an opinion that is otherwise admissible is not
objectionable because it embraces the ultimate issue to be decided by the trier
of fact." (Evid. Code, ¤ 805.) A witness testifying in the form of
an opinion may state on direct examination the basis for his or her opinion and
a court may in its discretion require that such a witness be examined before
testifying regarding "the reasons for his opinion and the matter ... upon
which it is based" (Evid. Code, ¤ 802), but any inadmissible
material that forms the basis of the opinion testimony is not "'independent
proof' of any fact." (People v. Gardeley (1996) 14 Cal.4th 605, 619 [59
Cal. Rptr. 2d 356, 927 P.2d 713].) Correspondingly, the failure to testify
to such basis is not a failure of "proof." Under these principles,
Detective Sample's expert testimony, taken
as a whole and in context, when viewed in conjunction with the evidence
of the circumstances of the crime, including the collaboration of defendant and
Chacon in traveling to another Norte–os area of Sacramento, indeed the
territory of one of the predicate crime subsets, with the criminal purpose of
shoplifting and then mutually confronting Manzo with Norte–os taunts in an
apparent attempt to protect Norte–os turf, is sufficient to support the jury's
verdict finding true the gang enhancement under section 186.22, subdivision
(b).
The
majority cites People v. Lawley (2002) 27 Cal.4th 102 [115 Cal. Rptr. 2d
614, 38 P.3d 461] in support of its conclusion that Sample's characterization
of the Sacramento Norte–os as a criminal street gang, without a description of
further facts or reasoning, is of no value and constitutes insufficient
evidence of that fact. (Maj. opn., ante, at p. 85.) Lawley is not
on point. In Lawley, this court rejected the defendant's contention that
the trial court was required to appoint a third competency expert when two
previously appointed experts came to opposite conclusions. (27 Cal.4th at
pp. 131-132.) We found appointment of a third expert in such situation
unnecessary, noting that the trial court was able to assess the weight and persuasiveness
of the experts' findings and conclusions without resort to further expert
opinion. In that context, we noted
the chief value of an expert's testimony lies in the material and reasoning on
which his or her opinion rests, and observed that expert opinion evidence is
really an argument to the court. (Id., at p. 132.) Lawley does
not stand for the proposition that expert opinion evidence must be rejected
absent a full explanation of the facts and reasoning on which it is based,
i.e., that it cannot itself constitute substantial evidence. Rather, it is up
to the trier of fact to give it the weight that it deserves. (People v.
Brown (2014) 59 Cal.4th 86, 100-101 [172 Cal. Rptr. 3d 576, 326 P.3d 188];
see People v. Jones (2012) 54 Cal.4th 1, 59 [140 Cal. Rptr. 3d 383, 275 P.3d
496].) Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114
Cal.App.4th 1108, 1117-1118 [8 Cal. Rptr. 3d 363], cited by the majority
(maj. opn., ante, at pp. 84-85), is also distinguishable. In Jennings,
the trial court granted the defendants' motion to strike an expert witness's
testimony regarding causation as being without foundation and the issue before
the reviewing court was whether the trial court erred in concluding the
testimony was inadmissible. (Jennings, at p. 1112.) The issue is
different when an expert's relevant and qualified testimony is admitted without
objection or challenge, as was the case with Sample's opinion testimony. Under
the circumstances here, it is inconsistent with the applicable standard of
review for a reviewing court, in the absence of patent falsity, inherent improbability,
or other reason to question its validity, to decide that Sample's testimony is
incredible or without value.
For
the same reason, Sample's testimony implicitly establishing that the subset
gang members who committed the predicate crimes considered themselves to be
part of the Sacramento Norte–os may not be rejected on appeal. Sample's
testimony was not unreasonable, incredible, or lacking in solid value simply
because it expressed his expert opinion that the predicate crime gang
"subsets" acted as part of the Sacramento Norte–os. (Evid. Code, ¤
805.) Indeed, there is nothing in the record before us that suggests
Sample's opinion lacked a sound basis given his broad experience and personal
knowledge of Hispanic gangs in the Sacramento area, including the predicate
offense Sacramento Norte–os subsets.
It
is well settled that proof may be by both direct and circumstantial evidence. (People
v. Jones (2013) 57 Cal.4th 899, 961 [161 Cal. Rptr. 3d 295, 306 P.3d 1136]
[circumstantial evidence may be sufficient to prove guilt beyond a reasonable
doubt]; People v. Morrow (1882) 60 Cal. 142, 144-145 [circumstantial
evidence may be as strong as direct evidence in proving guilt]; see People
v. Livingston (2012) 53 Cal.4th 1145, 1167 [140 Cal. Rptr. 3d 139, 274 P.3d
1132] [the law regarding proof by direct and circumstantial evidence is correctly
stated in CALCRIM No. 223 & CALJIC No. 2.00].) Here there was
such evidence supporting a reasonable inference that the predicate crime gang
subsets were part of the Sacramento
Norte–os and that the Sacramento Norte–os is a criminal street gang. The courts
in People v. Ortega (2006) 145 Cal.App.4th 1344 [52 Cal. Rptr. 3d 535]
and In re Jose P. (2003) 106 Cal.App.4th 458 [130 Cal. Rptr. 2d 810]
upheld jury verdicts finding the Norte–os to be a criminal street gang. We
should do the same.
Chin,
J., concurred.
CORRIGAN,
J., Concurring and Dissenting.--I concur
in the judgment and write separately to clarify the scope of our decision. The
issue we address is a narrow one. It
arises only when the prosecution seeks to prove a street gang
enhancement by showing the defendant committed a felony to benefit a broader
umbrella gang, but seeks to prove the requisite pattern of criminal gang
activity with evidence of felonies committed by members of subsets to the
umbrella gang. Our decision is limited to that factual scenario.
To
prove the street gang enhancement, the prosecution must prove that defendant
committed the underlying crime "for the benefit of, at the direction of,
or in association with any criminal street gang ... ." (Pen. Code, 1
¤186.22, subd. (b).) It must also prove the following:
1.
The defendant acted with the specific intent to promote, further, or assist
criminal conduct by members of an identifiable group. As the majority notes,
the group must be one that its members recognize as an ongoing entity with
which they associate. (See maj. opn., ante, at pp. 82-83.)
2.
That group must be of a specific kind in order to satisfy the STEP Act's
definition of a criminal street gang. The group may be formal or informal, but
it must be an ongoing association of three or more people who share a common
name or identifying symbol. (¤ 186.22, subd. (f).) The majority is correct
that the mere sharing of a common name or symbol is insufficient, standing
alone, to satisfy the statute. In addition, one of the primary activities of
the group must be the commission of certain enumerated crimes and group members
must engage in a pattern of criminal gang activity.
3.
This pattern of criminal gang activity must be proven by evidence that a gang
member or members committed two offenses as set out in the statute. 2
These acts are described as "predicate offenses." (People v. Tran
(2011) 51 Cal.4th 1040, 1044 [126 Cal. Rptr. 3d 65, 253 P.3d 239].)
1 All statutory references will be
to the Penal Code.
2 The statute defines a pattern of
criminal gang activity as "the commission of, attempted commission of,
conspiracy to commit, or solicitation of, sustained juvenile petition for, or
conviction of two or more [enumerated] offenses, provided at least one of these
offenses occurred after the effective date of this chapter and the last of
those offenses occurred within three years after a prior offense, and the offenses
were committed on separate occasions, or by two or more persons ... ." (¤
186.22, subd. (e).) "This language allows the prosecution the choice
of proving the requisite 'pattern of criminal gang activity' by evidence of
'two or more' predicate offenses committed 'on separate occasions' or by
evidence of such offenses committed 'by two or more persons' on the same
occasion." (People v. Loeun (1997) 17 Cal.4th 1, 10 [69 Cal. Rptr. 2d
776, 947 P.2d 1313]; but see People v. Zermeno (1999) 21 Cal.4th 927,
930-933 [89 Cal. Rptr. 2d 863, 986 P.2d 196].)
This
case involves a specific kind of criminal street gang: an umbrella group
allegedly operating through smaller subsets that may be independent from each
other, but which associate and identify with the broader umbrella group. As the
majority and the Chief Justice note, there is abundant evidence in this record
that an entity known as the Norte–os exists, operates in the Sacramento area,
shares common symbols and the name "Norte–o," and operates through
smaller associated subsets. Likewise, there is substantial evidence that defendant
associated with the larger Norte–o gang, and intended to promote, further, or
assist criminal conduct by its members.
To
prove the required predicate offenses, the prosecution's gang expert, John
Sample, testified about crimes committed by specifically named groups: Varrio
Gardenland Norte–os and Varrio Centro
Norte–os Norte–os Norte–os. Sample made the conclusory statement that
Varrio Gardenland and Varrio Centro
were subsets of the umbrella group of Norte–os. But he did not provide any
testimony from which the jury could conclude that these smaller groups actually
considered themselves part of the broader Norte–o group, other than the sharing
of the name and symbols. While the use of a common name or symbol is necessary,
something more is required.
The
evidence fell short only because Sample failed to testify the Varrio Centro Norte–os
and the Varrio Gardenland Norte–os were actually associated with the
broader Norte–o umbrella group in that they consider themselves members
of, not only their own subset, but of the larger group of Norte–os as well. It
is that final link alone that is missing here, and its absence undermines the
verdict. 3
3 This lack of proof is somewhat
understandable. The defense did not contest that the Norte–os exist as an
umbrella group that qualifies as a criminal street gang and operates through
neighborhood subsets. Indeed, the defense theory was that defendant, as a Norte–o
member, was threatened by a Sure„o member and acted in self-defense. Evidence
of the link may have been readily available but not explicitly inquired about
because the law was unclear in this regard.
The
majority concludes that "the STEP Act requires the prosecution to
introduce evidence showing an associational or organizational connection that
unites members of a putative criminal street gang" (maj. opn., ante,
at p. 67), and gives a series of examples (id. at pp. 77-81). The
examples given include evidence of "shared bylaws or organizational arrangements"
(id. at p. 77), the existence of collaborative activity (id. at
p. 78), or self-identification as part of a larger group (id. at pp.
78-79).
Contrary
to the majority's suggestion, self-identification is not merely one way to
prove the requisite connection. It is the organizing principle that unites the
majority's myriad examples. The principle is derived directly from the STEP
Act's definition of a criminal street gang as an "ongoing organization,
association, or group of three or more persons, whether formal or informal ...
having a common name or common identifying sign or symbol ... ." (¤
186.22, subd. (f).) A gang is defined internally by its members, who then
show themselves to be a group by using a common name or symbol that identifies
their group and distinguishes it from others. The same principle applies when a
larger umbrella group operates through subsets. A subset recognizes itself as
both the subset and as part of the umbrella group. It demonstrates that
self-identification through its conduct.
The
majority asserts that "there are some limits on the boundaries of an
identity-based theory" and it would be insufficient "merely that a
local subset has represented itself as an affiliate of what the prosecution
asserts is a larger organization." (Maj. opn., ante, at p. 79.) The
majority further suggests subsets should "mutually acknowledge one another
as part of that same organization ... ." (Ibid.) The majority
concludes as to self-identification: "Evidence of self-identification must
refer to the particular activities of subsets, and must permit the jury to
reasonably conclude that the various subsets are associated with each other
because of their shared connection with a certain group." (Id. at
p. 80.)
I agree that the mere subjective intent
of particular subset members to identify with an umbrella group is insufficient
to show the relevant connection. The connection must be an objective one based
on the subset's conduct. That is why the STEP Act requires proof of predicate offenses.
However, I disagree with any suggestion that different subsets must acknowledge
each other as part of a larger group, or that the umbrella group and a subset
must somehow "mutually acknowledge" each other. A particular Norte–o
subset may be part of the larger umbrella group, yet lack a relationship with,
or knowledge of, any other particular subset.
Detective
Sample's description of the Norte–o gang's structure was uncontroverted below
and reflected a highly informal group. 4 Its informality does not exclude it from
the reach of the statute. It would be remarkable indeed to expect a gang like
that described here to operate under a set of "bylaws" or be
hierarchically linked. The statute embraces criminal street gangs that differ
dramatically from Murder Incorporated. Some sophisticated criminal enterprises
may operate in a highly structured way, with an organizational chart and designated
"shot callers." But the STEP Act does not require that any given gang
do so, so long as the statutory elements are met. There need not be proof that
different subsets work together, or have any particular affection for each
other. This case provides no occasion for us to speculate about what other
kinds of evidence might suffice in other circumstances, with gangs that operate
differently.
4 As discussed, Sample's testimony
was insufficient, not because it failed to adequately describe the relationship
between the umbrella Norte–o gang and its subsets generally, but because he
failed to specifically link the particular subsets alleged to have committed
the predicate offenses with the larger gang. Contrary to the majority's characterization,
nothing in this opinion suggests reviewing courts should "speculate to
fill evidentiary gaps ... ." (Maj. opn., ante, at p. 82.) Of course
they should not do so.
When
the proffered predicate offenses are allegedly committed by members of a
subset, there must be sufficient evidence of a link between that subset and the
umbrella group. The link must show the subset self-identifies as associating
with the umbrella group, and demonstrates that association through its conduct.
This link can, of course, be established in a variety of ways, including
statements by members or by inferences drawn from their behavior. Because the
evidence of such self-identification was lacking here, I concur with the majority's
holding that the Court of Appeal's judgment must be reversed.