Filed 12/31/19 Segura v. Superior Court CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

JONATHAN SEGURA et al.,

Petitioners,

v.

THE SUPERIOR COURT OF SANTA CLARA COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

H045834

(Santa Clara County

Super. Ct. No. C1627960)

Petitioners, five pre-trial criminal defendants, seek extraordinary writ relief from the trial court’s order denying their Penal Code section 995 motion to dismiss gang enhancements and a gang participation charge, which petitioners say are unsupported by legally competent evidence.

The charges in this case arise from three separate incidents that took place in late December 2015—a robbery, a homicide, and a fight in which two people were stabbed, one of them fatally. Petitioner Luciano Esquivel is alleged to have taken part in all three incidents. Petitioner Jonathan Segura is alleged to have been involved in the robbery and the homicide. Petitioners Martin Anaya, Luis Bracamonte, and Richard Deanda are alleged to have taken part in the fight only. All of the charges carry gang enhancement allegations (§ 186.22, subd. (b)) and all five petitioners were charged with the substantive offense of active participation in a criminal street gang (§ 186.22, subd. (a)).

I. BACKGROUND

A. December 25, 2015 Robbery and Resulting Charges

Shortly before 2:00 a.m. on December 25, 2015, Jesse M. purchased beer at a 7 Eleven near Story Road and Hopkins Drive in San Jose. As he exited the store, two men approached him and asked if he “banged,” meaning if he was a gang member. Jesse responded that he did not. One of the men then threatened to “stick” him if he didn’t give them his wallet, the red 49ers jacket he was wearing, and his beer. Jesse complied; he later identified Segura and Esquivel as the robbers from photo line-ups.

Segura admitted to police that he was at the 7-Eleven with Esquivel when Esquivel took a red jacket, money, and beer from a man. Segura told police that he warned the robbery victim not to “wear red in this neighborhood.”

Based on the robbery, Segura and Esquivel were charged with second degree robbery (§§ 211, 212.5, subd. (c); count 4) and were alleged to have committed that crime for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(C)).

B. December 25, 2015 Homicide and Resulting Charges

Jose M. was stabbed to death on North 26th Street in San Jose between 5:00 and 6:00 a.m. on December 25, 2015. At the time of the stabbing, Jose was walking to his car with two friends. One of those friends told police that they were approached by three men, who had been at a nearby Mobil gas station. The men asked Jose and his friends if they “banged.” One of the friends said, “No,” and the three men began to walk away. Jose then said he was “down for the homeboys.” One of the three men immediately stabbed Jose in the chest.

Segura admitted to police that he was involved in Jose’s stabbing. He said that he, Esquivel, and Brian Gutierrez were getting gas at the Mobil gas station when Segura heard someone yelling “scraps.” That prompted Segura, Esquivel, and Gutierrez to cross the street and approach three men—Jose and his friends—to ask if they banged. Segura said the men initially denied being gang members, but that one of them then said he was “down with the homeboys” and called them “scraps.” Segura said Esquivel stabbed that man in the chest.

Gutierrez also admitted his presence during Jose’s stabbing. Gutierrez said he, Segura, and Esquivel stopped to get gas. They approached three men and asked if they were gang members. The men denied being in a gang. The victim then said he was “down for the homeboys” and Esquivel stabbed him.

Based on the stabbing, Segura and Esquivel were charged with murder (§ 187; count 1) and were alleged to have committed that crime for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by gang members (§ 186.22, subd. (b)(5)).

C. December 29, 2015 Fight and Resulting Charges

Gutierrez told police that on December 29, 2015 he went to the Carl’s Jr. near White and Quimby in East San Jose with his girlfriend. Laurence Ryan, a lieutenant with the San Jose Police Department and commander of the Department’s Gang Investigations Unit in 2015, testified that the Carl’s Jr. was located in “red territory claimed by Norteños.” Gutierrez told police he “was a Sureño with SSP, Sur Santos Pride” and that on the day he went to Carl’s Jr., he was “flamed out in Sureño clothing,” wearing blue shoes, blue shorts, and a blue shirt.

While at the Carl’s Jr., Gutierrez noticed a man and woman he believed to be Norteños based on their clothing. A second man joined them. The three motioned to Gutierrez in a way that made him think they wanted to fight, so he called his friends to come help him. Gutierrez reached Anaya and told him to come and to bring any weapons he had. Gutierrez told police that eventually Anaya, Deanda, Bracamonte, Esquivel, and Christian Perez arrived. A fight ensued outside the restaurant during which Andrea A. was stabbed fatally in the neck and Jason M. was stabbed three times. He survived.

Andrea’s mother told police that Andrea associated with Norteños. When interviewed by police, Jason denied gang involvement. However, the officer who interviewed him observed that he had tattoos typically associated with Norteños.

Anaya admitted to police that Gutierrez called him for help and that he came to Carl’s Jr. and was involved in a fight with Norteños there. Anaya told police that he heard “scrap and Norte” being yelled during the fight.

Perez also admitted to police that he participated in the fight. He told officers that the woman (presumably Andrea) said something about “scraps” and hit Esquivel with a stick, so Esquivel stabbed her. Perez also told police that Anaya and Esquivel stabbed Jason. Perez said he tried to stab one of the Norteños with a screwdriver, but the screwdriver broke.

Based on the Carl’s Jr. fight, Esquivel, Anaya, Bracamonte, and Deanda were charged with murder (§ 187; count 2) and attempted murder (§§ 664, subd. (a), 187; count 3) and were alleged to have committed those crimes for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by gang members (§ 186.22, subds. (b)(5) & (b)(1)(C)).

D. Gang Evidence

1. Gang Tattoos and Admissions of Gang Membership

In the course of investigating the Carl’s Jr. fight, San Jose Police Detective Elizabeth Ramirez interviewed Gutierrez. She testified that he told her that he “was a Sureño with SSP, [meaning] Sur Santos Pride.”

Ramirez also interviewed Anaya, who she testified admitted to being a member of “SSP.” Evidence also was presented at the preliminary hearing showing that Anaya has tattoos depicting a fleur de lis, three dots, “SSP,” and “1916.”

San Jose Police Sergeant Bertrand Milliken also was involved in investigating the Carl’s Jr. incident. In the course of that investigation, he interviewed Deanda, who admitted being a member of “SSP.” Evidence also was presented at the preliminary hearing showing that Deanda has a tattoo depicting a fleur de lis.

Sergeant Milliken also interviewed Bracamonte, who stated that he was a Sureño but that, while he associates with SSP members, he had not been initiated to that gang.

Gutierrez told Sergeant Milliken that Esquivel was a Sureño but not a member of SSP.

Sergeant Milliken testified that Segura admitted to being a member of Varrio Virginia Trece, which Segura said was a Sureño gang. Evidence was presented showing that Segura had “13” and “Crazy Wicked Sureño” tattooed on his body.

There also was evidence showing that Perez had tattoos depicting three dots, a fleur de lis, and “13.”

2. Prior Police Contacts

Detective Allen Dela Cruz, a member of the San Jose Police Department’s Gang Investigations Unit, was the gang investigator assigned to the December 25 homicide and the Carl’s Jr. incident. Over hearsay objections from defense counsel, Dela Cruz testified to prior contacts other San Jose police officers had had with Gutierrez, Anaya, and Deanda. The significance of each contact was that the contacted petitioner either was in SSP territory or admitted SSP membership.

3. Gang Expert Testimony

Dela Cruz also testified as an expert on criminal street gangs. He opined that Sur Santos Pride (SSP) is a criminal street gang that is associated with the Mexican Mafia prison gang, has more than three members, and has been in existence since the 1990s. He further testified that symbols associated with SSP include the fleur de lis; the number 16, representing the sixteenth letter of the alphabet (P); the number 19, representing the nineteenth letter of the alphabet (S); the number 13; the color blue; one dot; three dots; and the numbers one and three. Dela Cruz testified that SSP’s territory is centered around Washington Elementary School in San Jose. Dela Cruz opined that SSP’s primary activities include “assaults, robberies, stolen vehicles, weapons possessions.”

Dela Cruz testified that the term “scrap” is “a derogatory term used by Norteños toward Sureños.”

Dela Cruz opined that the December 25 robbery was carried out for the benefit of and in association with a criminal street gang “because the victim . . . was wearing a red jacket in an area predominantly known as Sureño, and he was checked, meaning he was asked his gang affiliation.” Neither Dela Cruz nor the prosecutor specified which criminal street gang was at issue.

Dela Cruz further opined that the December 25 homicide was carried out for the benefit of and in association with a criminal street gang because “during the incident Mr. Segura heard someone yell out ‘scraps.’ They confronted Jose M[.] and his friends and asked about his gang affiliation, and during that contact, . . . ‘scraps’ [was said]. And scraps is a derogatory term used [by] Norteños towards Sureños.” Again, neither Dela Cruz nor the prosecutor specified which criminal street gang was at issue.

Finally, Dela Cruz opined that Andrea’s murder and the attempted murder of Jason were carried out for the benefit of and in association with a criminal street gang because “Gutierrez was at the Carl’s Jr. on the East Side of San Jose, which is predominantly a Norteño neighborhood. He was dressed in blue, and when he was confronted by [a man] and Andrea . . . , he believed that he was going to be attacked by other Norteños . . . therefore, he called other SSP gang members to come back him up. The other subjects arrived and a confrontation ensued where during that confrontation, Jason M[.] was stabbed and Andrea A[.] was murdered.”

There was no expert testimony as to whether Sureños meet the statutory definition of a criminal street gang; concerning the connections, if any, between SSP, Varrio Virginia Trece, and Sureños; or about Norteños, including any symbols with which they might associate or their relationship with Sureños.

E. Procedural History

Petitioners were held to answer at the close of the preliminary hearing on October 27, 2017. On November 6, 2017, petitioners waived formal arraignment, pleaded not guilty, and denied the allegations. That same day, the Santa Clara County District Attorney filed a first amended information charging Segura with one count of murder (§ 187; count 1), one count of second degree robbery (§§ 211, 212.5, subd. (c); count 4), and one count of active participation in a criminal street gang (§ 186.22, subd. (a); count 5); charging Esquivel with two counts of murder (§ 187; counts 1 and 2), one count of attempted murder (§§ 664, subd. (a), 187; count 3), one count of second degree robbery (§§ 211, 212.5, subd. (c); count 4), and one count of active participation in a criminal street gang (§ 186.22, subd. (a); count 5); and charging Anaya, Bracamonte, and Deanda with one count each of murder (§ 187; count 2), attempted murder (§§ 664, subd. (a), 187; count 3), and active participation in a criminal street gang (§ 186.22, subd. (a); count 5). Counts 1 though 4 all carried gang enhancement allegations as to each defendant. (§ 186.22, subd. (b).)

Petitioners filed a section 995 motion to dismiss the active participation in a criminal street gang charges (count 5) and the gang enhancements on January 10, 2018, 65 days after they waived formal arraignment. The trial court denied that motion on May 7, 2018.

On May 22, 2018, petitioners filed a petition for writ of mandate and/or prohibition in this court and requested a stay of all criminal proceedings in the superior court. This court stayed all trial court proceedings on July 11, 2018. We issued the order to show cause on August 1, 2019. We also provided the People (the real party in interest) the opportunity to file a return in opposition to the writ and petitioners the opportunity to file a reply to the return.

II. DISCUSSION

A. Availability of Pretrial Writ Review

“The denial of a motion made pursuant to [s]ection 995 . . . may be reviewed prior to trial only if the motion was made by the defendant in the trial court not later than . . . 60 days following defendant’s arraignment on the information or indictment if a felony, unless within these time limits the defendant was unaware of the issue or had no opportunity to raise the issue.” (§ 1510.) The People argue that pretrial writ review of the denial of petitioners’ section 995 motion is unavailable because petitioners filed that motion 65 days after arraignment, outside the 60-day limitation imposed by section 1510. Petitioners respond that section 1510’s exceptions to the 60-day rule apply given the length and complexity of the preliminary hearing. Alternatively, petitioners argue counsel was ineffective in failing to file the section 995 motion within the 60-day period required by section 1510.

1. Case Law Construing Section 1510

In McGill v. Superior Court (2011) 195 Cal.App.4th 1454, 1513 (McGill), the defendant’s section 995 motion was filed more than two-and-a-half years after her arraignment. The Court of Appeal nevertheless concluded that pretrial writ review was available because both the lack of opportunity and lack of awareness exceptions to section 1510 applied. The court found a lack of opportunity to file the section 995 motion sooner based on the “fact-intensive nature of the charge” (perjury before a grand jury); the vagueness of the indictment, which “gave no details at all about the alleged perjury”; and the “uncommonly large” record, consisting of five volumes of grand jury transcripts and nearly two volumes of exhibits. (McGill, supra, at p. 1514.) The McGill court found lack of awareness based on “the complexity of the issues,” which required “a line-by-line review of” the testimony of multiple witnesses and research into relatively obscure and potentially unsettled legal issues. (Id. at pp. 1514-1515.)

In Arteaga v. Superior Court (2015) 233 Cal.App.4th 851 (Arteaga), the defendant filed his section 995 motion 103 days after arraignment. This court concluded that both exceptions to section 1510 applied because “[p]etitioner had not been appointed counsel until one week after his arraignment”; “[d]iscovery was not provided to counsel until two weeks after her appointment”; the record was voluminous (2,370 pages of grand jury transcripts; 1,520 pages of grand jury exhibits; 1,500 pages of discovery documents; and audio recordings and images); and the issue raised in the section 995 motion was fact intensive and required extensive legal research. (Arteaga, supra, at p. 861.)

At least one court has held that “if there is ineffective assistance in not timely bringing a meritorious section 995 motion, then the section 995 motion may be reviewed on the merits.” (Fleming v. Superior Court (2010) 191 Cal.App.4th 73, 104.)

2. Both Exceptions to Section 1510 Apply, Making Pretrial Writ Review Available

Here, an attorney who was not present at the preliminary hearing was appointed through the Santa Clara County Independent Defense Counsel Office to prepare a section 995 motion for all five petitioners. To prepare the motion, she needed to review the 754-page (seven-volume) preliminary hearing transcript and assess the existence of probable cause as to five different defendants charged with numerous offenses plus gang allegations arising out of three separate incidents. The issue of whether the gang allegations and charges were supported by probable cause required a line-by-line review of the entire transcript, as relevant testimony was elicited from numerous witnesses, not solely the gang expert. For example, Detective Ramirez and Sergeant Milliken testified about petitioners’ gang membership admissions and tattoos, which gang expert testimony indicated were gang-related. Moreover, as the People argue, the facts of the incidents themselves are pertinent to the gang allegations and the elements of the substantive gang charges. In sum, preparation of the section 995 motion required analysis of the entirety of the lengthy preliminary hearing transcript with the interests of five separate defendants in mind.

The existence of probable cause to support the gang allegations and charges is a particularly complex issue in this case for two reasons. First, the underlying facts are complicated. This is not a straightforward case involving a single crime allegedly committed by alleged members of a single gang. Instead, there are three underlying incidents, each involving a different combination of the five petitioners (plus cooperating witnesses), and there is evidence indicating that petitioners belong to three different gangs. Accordingly, the probable cause analysis for each gang allegation varies depending on the facts of the underlying incident, including the identities of the parties involved and the gang-membership evidence adduced as to the particular defendant. A second source of complexity is the prosecutor’s failure to identify the relevant criminal street gang in the information or during the preliminary hearing. That omission left counsel to scour the transcript for testimony about SSP, Varrio Virginia Trece, Sureños, and any connections between the three.

Given the length of the preliminary hearing transcript, the fact that the section 995 motion was filed on behalf of five defendants who were not identically situated, and the complexity of the issues raised, we conclude that the exceptions to the 60-day requirement of section 1510 apply here.

B. Admissibility of Testimony Regarding Petitioners’ Prior Police Contacts

As noted above, Dela Cruz testified to prior contacts that other San Jose police officers had had with Gutierrez, Anaya, and Deanda over repeated hearsay objections from defense counsel. During each contact, the contacted petitioner either was in SSP territory or admitted SSP membership. As petitioners acknowledge, “[s]pecial rules apply to the admission of hearsay evidence at a preliminary hearing in a criminal case.” (Correa v. Superior Court (2002) 27 Cal.4th 444, 451 (Correa).) Specifically, section 872, subdivision (b) permits “the finding of probable cause [to] be based in whole or in part upon the sworn testimony of a law enforcement officer or honorably retired law enforcement officer relating the statements of declarants made out of court offered for the truth of the matter asserted,” so long as the officer has certain specified qualifications. But that provision does not permit even a qualified officer who lacks knowledge of the crime or the circumstances under which the out-of-court statement was made to “simply read a police report that was prepared by an absent investigating officer.” (Correa, supra, at p. 452.) Petitioners say that is precisely what happened here with respect to the prior police contacts evidence, which they request be culled from the record.

We need not decide whether Dela Cruz’s testimony regarding Gutierrez, Anaya, and Deanda’s prior police contacts constituted inadmissible hearsay. Even assuming it did, petitioners were not prejudiced by its erroneous admission, regardless of the standard of prejudice applied. The prior police contacts were relevant to show that Gutierrez, Anaya, and Deanda are members of SSP. That evidence was cumulative. Gutierrez admitted to Detective Ramirez that he was a member of SSP. Anaya likewise admitted to Detective Ramirez that he was a member of SSP and there was evidence that he was tattooed with SSP symbols. Deanda admitted to Sergeant Milliken that he was a member of SSP. And evidence was presented at the preliminary hearing showing that Deanda had a tattoo depicting a fleur de lis, an SSP symbol. Plainly, the admission of the challenged prior police contacts evidence did not impact the outcome of the preliminary hearing.

C. The Existence of Probable Cause Supporting the Gang Enhancements and Substantive Gang Charges

Petitioners argue the gang enhancements and substantive gang charges must be dismissed because the People failed to show that SSP is a criminal street gang. Specifically, they say the People failed to present competent evidence that SSP has as one of its primary activities the commission of one or more of the criminal acts enumerated in section 186.22, subdivision (e). Petitioners further contend that the substantive gang charges must be dismissed due to the absence of evidence that they knew that SSP members engage in or have engaged in a pattern of criminal gang activity.

1. Section 995 Motions

“To prevail on a section 995 motion to set aside an information, the defendant must establish that he was ‘committed without reasonable or probable cause.’ (§ 995, subd. (a)(2)(B).) To establish probable cause sufficient to withstand a section 995 motion to dismiss, the People must make some showing as to the existence of each element of the charged offense. [Citation.] ‘Evidence that will justify a prosecution need not be sufficient to support a conviction. [Citations.] “ ‘Probable cause is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused.’ ” [Citations.]’ ” (People v. Chapple (2006) 138 Cal.App.4th 540, 545 (Chapple).) Thus, “[o]n a motion to dismiss a count under . . . section 995, we ask only ‘whether the evidence is such that “a reasonable person could harbor a strong suspicion of the defendant’s guilt.” ’ [Citation.] This is an ‘exceedingly low’ standard [citation] . . . .” (People v. Superior Court (Sahlolbei) (2017) 3 Cal.5th 230, 245.) Accordingly, “[a]n information should be set aside ‘only when there is a total absence of evidence to support a necessary element of the offense charged.’ ” (Chapple, supra, at pp. 545-546.)

The Evidence Code governs the admissibility of evidence at preliminary hearings. (Chapple, supra, 138 Cal.App.4th at p. 546; Evid. Code § 300 [“Except as otherwise provided by statute, this code applies in every action before the Supreme Court or a court of appeal or superior court, including proceedings in such actions conducted by a referee, court commissioner, or similar officer, but does not apply in grand jury proceedings”].) “Upon an accused’s timely motion, an indictment must be set aside if the sole proof of guilt consists of legally incompetent evidence.” (People v. Anderson (1968) 70 Cal.2d 15, 22.)

2. Legally Competent Evidence of SSP’s Primary Activities Was Submitted

The challenged gang enhancements and substantive gang participation charges are predicated on the existence of a criminal street gang. Section 186.22, subdivision (f) defines “criminal street gang” to mean “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having 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.” The criminal acts enumerated in section 186.22, subdivision (e) include assault with a deadly weapon or by means of force likely to produce great bodily injury, robbery, theft and unlawful taking or driving of a vehicle, prohibited possession of a firearm, carrying a concealed firearm, and carrying a loaded firearm. (§ 186.22, subds. (e)(1), (2), (25), (31), (32), & (33).)

Petitioners contend the People failed to present any competent evidence that SSP has as one of its primary activities the commission of one or more of the criminal acts enumerated in section 186.22, subdivision (e). They acknowledge that the gang expert testified, over defense counsel objections for lack of foundation, that “[a]ssaults, robberies, stolen vehicles, weapons possessions” are among SSP’s primary activities. But petitioners say that opinion was not legally competent evidence because it was not based on an adequate factual foundation. We disagree.

a. Expert Testimony and Establishing “Primary Activities” for Purposes of Proving the Existence of a “Criminal Street Gang”

Our Supreme Court has explained that “[t]he phrase ‘primary activities,’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes be one of the group’s ‘chief’ or ‘principal’ occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group’s members.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323 (Sengpadychith).) At trial, “[s]ufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony, as occurred in [People v.] Gardeley [(1996)] 14 Cal.4th 605.[ ] There, a police gang expert testified that the gang of which defendant Gardeley had for nine years been a member was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies. (See § 186.22, subd. (e)(4) & (8).) The gang expert based his opinion on conversations he had with Gardeley and fellow gang members, and on ‘his personal investigations of hundreds of crimes committed by gang members,’ together with information from colleagues in his own police department and other law enforcement agencies. (Gardeley, supra, at p. 620.)” (Sengpadychith, supra, at p. 324.)

“ ‘The requirements for expert testimony are that it relate to a subject sufficiently beyond common experience as to assist the trier of fact and be based on matter that is reasonably relied upon by an expert in forming an opinion on the subject to which his or her testimony relates. [Citations.]’ ” (People v. Polk (2019) 36 Cal.App.5th 340, 353.) “The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision as to whether expert testimony meets the standard for admissibility is subject to review for abuse of discretion.” (People v. McDowell (2012) 54 Cal.4th 395, 426.) “[W]hen the proposed expert testimony rests on an assumption without any support in the trial evidence, the court . . . abuse[s] its discretion in admitting it. Such testimony has little or no probative value, bears the potential to mislead the jury into accepting the unsupported assumption and drawing from it unwarranted conclusions, and thus cannot significantly ‘help the trier of fact evaluate the issues it must decide.’ ” (People v. Moore (2011) 51 Cal.4th 386, 406.)

b. Factual Background

Dela Cruz, the gang expert, testified that he was a 14-year veteran of the San Jose Police Department and that he had been a detective with the department’s Gang Investigations Unit for one year. Prior to joining the Gang Investigations Unit, he had been a member of the Violent Crimes Enforcement Team, “the street-level gang unit with the San Jose Police Department.” Dela Cruz testified that he had worked on more than 100 gang-related incidents and that he had personally spoken with gang members as well as with witnesses and victims of gang violence. Dela Cruz testified that he had received well over 100 hours of formal training about criminal street gangs, including “courses through the South Bay Regional Training Consortium on Hispanic Street Gangs[,] . . . conferences with [the] San Mateo County Sheriff’s Office, Monterey County Gang Task Force, and . . . Santa Clara County Gang Task Force.” A portion of that training was on Hispanic criminal street gangs, including Norteños and Sureños. Dela Cruz further testified that he attends “monthly meetings with other police agencies in Santa Clara County, [including] probation and parole officers,” to discuss gang issues.

Dela Cruz testified that he investigated SSP in the context of investigating the December 25 homicide and the Carl’s Jr. incident and that he had previously heard of the gang. As noted, over defense counsel objections for lack of foundation, Dela Cruz testified that “[a]ssaults, robberies, stolen vehicles, weapons possessions” are among SSP’s primary activities.

c. Dela Cruz’s Opinion Was Supported by Adequate Foundation

Petitioners argue that Dela Cruz’s opinion as to the primary activities of SSP lacked foundation because he did not explicitly state the basis for that opinion. But the record supports the inference that Dela Cruz’s knowledge regarding SSP’s activities came from his formal training on criminal street gangs and his experience investigating gang-related crime. We recognize that Dela Cruz did not explicitly state that SSP is a Hispanic gang or provide details regarding his experience with SSP specifically. However, there was testimony that could have led a prudent person to conscientiously entertain a strong suspicion that SSP is a Hispanic gang with ties to Sureños. In particular, Dela Cruz testified that SSP is affiliated with the Mexican Mafia prison gang, Detective Ramirez testified that Gutierrez told her that he “was a Sureño with SSP,” and the testimony shows that members of SSP and Sureños associate with one another and commit crimes together. In light of the foregoing evidence, we cannot say that the court abused its discretion by concluding that Dela Cruz’s training on criminal street gangs generally, and Hispanic street gangs and Sureños specifically, provided sufficient foundation for his opinion regarding the primary activities of SSP. (See People v. Fuiava (2012) 53 Cal.4th 622, 672 [abuse of discretion standard applied to claim of inadequate foundation for expert testimony].)

In re Alexander L. (2007) 149 Cal.App.4th 605, on which petitioners rely, is distinguishable. There, a wardship petition alleged that the minor had committed three counts of vandalism and further alleged gang enhancements. (Id. at p. 609.) At the jurisdictional hearing, the gang expert testified as follows regarding the primary activities of the gang at issue: “ ‘I know they’ve committed quite a few assaults with a deadly weapon, several assaults. I know they’ve been involved in murders. [¶] I know they’ve been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.’ ” (Id. at p. 611.) “No specifics were elicited as to the circumstances of these crimes, or where, when, or how [the gang expert] had obtained the information.” (Id. at pp. 611-612.) The court of appeal concluded that the expert’s “testimony lacked an adequate foundation.” (Id. at p. 612.) By contrast, here, Dela Cruz testified regarding his gang training, his conversations with gang members, and his participation in gang investigations, and his ongoing consultation with other experts in the field. This testimony provided a sufficient basis for his expert opinion on the primary activities of SSP. (See Sengpadychith, supra, 26 Cal.4th at p. 324.)

3. The Knowledge Element of the Substantive Gang Participation Charge

Petitioners were charged with actively participating in a criminal street gang in violation of section 186.22, subdivision (a). The elements of that offense are “(1) active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; (2) knowledge that the gang’s members engage in or have engaged in a pattern of criminal gang activity; and (3) the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang.” (People v. Albillar (2010) 51 Cal.4th 47, 56.) Petitioners contend the People failed to present evidence as to the second element—that they knew of SSP’s pattern of criminal gang activity. The People respond that “the knowledge element can be satisfied simply by reasonable inferences from the facts of the charged crimes.” We agree with the People with respect to all of the petitioners other than Segura.

The phrase “pattern of criminal gang activity” is statutorily defined to mean “the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more” predicate 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).) Thus, “the requisite ‘pattern of criminal gang activity’ [can be proved] 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 (Loeun), fn. omitted.) “[A] predicate offense may be established by evidence of the charged offense.” (People v. Tran (2011) 51 Cal.4th 1040, 1046.) Therefore, the requisite pattern can be established by evidence of “the defendant’s commission of the charged offense and the contemporaneous commission of a second predicate offense by a fellow gang member.” (Loeun, supra, at p. 10, 14 [pattern of criminal gang activity established through evidence of defendant’s “commission of the charged crime of assault with a deadly weapon on [the victim] and the separate assault on [the victim] seconds later by a fellow gang member”].) Unlawful homicide is a predicate offense. (§ 186.22, subd. (e)(3).)

The question before us is whether the record contains evidence that would lead a person of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion that petitioners knew that SSP’s members engage in, or have engaged in, two or more predicate offenses.

Evidence was presented showing that that petitioners Esquivel, Anaya, Bracamonte, and Deanda all participated in the fight outside Carl’s Jr. Sergeant Milliken testified that Perez told him that he attempted to stab the male victim during that fight and that Anaya did stab the male victim. As noted above, there also was evidence presented that Perez and Anaya are members of SSP. The foregoing evidence would lead a person of ordinary caution to conscientiously entertain a strong suspicion that two SSP members (Perez and Anaya) committed predicate offenses (attempted unlawful homicide) in the presence of Esquivel, Anaya, Bracamonte, and Deanda. A person of ordinary caution could reasonably infer that Esquivel, Anaya, Bracamonte, and Deanda—having been present—knew of the commission of the predicate offenses and, by extension, of SSP’s members’ pattern of criminal gang activity.

The analysis differs as to Segura, who was not present for the Carl’s Jr. fight. There was evidence that he was present for the December 25 robbery. But only Esquivel (a Sureño) and Segura himself (a member of Varrio Virginia Trece) were present for that crime; no member of SSP participated. Accordingly, Segura’s knowledge of the robbery does not show knowledge that SSP members commit predicate offenses. Segura also was present for the December 25 stabbing, along with Esquivel and Gutierrez, a member of SSP. Segura’s knowledge of that single predicate offense involving a member of SSP is not sufficient to lead a person of ordinary caution to conscientiously entertain a strong suspicion that Segura knew that SSP’s members engage in, or have engaged in, two or more predicate offenses.

The People argue that, as to Segura, the court could have considered Sureños to be the pertinent criminal street gang for purposes of the substantive gang offense. The People acknowledge that the gang expert “did not specifically testify to the primary activities of the Sureños,” but say the court nevertheless could, “[a]s a matter of common knowledge,” have “had a strong suspicion that the Sureños, the umbrella gang, engaged in the requisite pattern of criminal activity, and that Segura . . . had sufficient experience with the gang, to know that was the case.” No evidence was submitted that the Sureño gang meets the statutory definition of a criminal street gang (i.e., whether it has more than three members, has the commission of a predicate offense as one of its primary activities, and has members who have engaged in a pattern of criminal gang activity). The People’s apparent position is that it is a matter of common knowledge that the Sureño gang is a criminal street gang within the meaning of section 186.22, subdivision (f). We disagree with that viewpoint. The existence of the Sureño gang may be common knowledge in certain communities. But even among those familiar with the gang’s existence, whether the gang satisfies the statutory definition of “criminal street gang” (e.g., whether Sureño gang members committed predicate offenses within the statutorily required timeframes to satisfy the pattern of criminal gang activity requirement) is, in our view, a matter beyond common knowledge. Indeed, were it not, gang expert testimony would not be admissible. (Evid. Code, § 801, subd. (a) [expert opinion testimony must relate “to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact”].) Moreover, we are not aware of any authority permitting a court to hold a defendant to answer based on “common knowledge” of a necessary element of the offense, as opposed to any evidence supporting that element. We conclude that count 5 should have been dismissed as to Segura because “ ‘there is a total absence of evidence to support [the knowledge] element of [that] offense . . . .’ ” (Chapple, supra, 138 Cal.App.4th at pp. 545-546.)

III. DISPOSITION

Let a peremptory writ of mandate issue directing respondent court to vacate its order denying petitioners’ section 995 motion and to enter a new order dismissing the active participation in a criminal street gang charge (count 5) against Segura only and denying the motion in all other respects. The previously ordered temporary stay is dissolved effective upon the issuance of remittitur.

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ELIA, ACTING P. J.

WE CONCUR:

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MIHARA, J.

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GROVER, J.

Segura et al. v. Superior Court

H045834