Gang Enhancement Vacated – Expert Opinion Speculative

On August 1, 2018, at about 2:30 p.m., two deputy sheriffs saw Defendant Jean Ervin Soriano and Defendant B. Ceja walking together on a residential sidewalk in San Juan Capistrano near a place they called “The Stoop.”  

Soriano was a self-admitted full member of the Varrio Viejo gang and Ceja was an associate member.  Varrio Viejo has over 100 active participants.  Soriano has a gang tattoo tattooed on the top of his bald head.  The Varrio Viejo gang claims the whole city of San Juan Capistrano as its territory.  The gang often hangs out together near “The Stoop” to talk and exchange information about rival gangs, possible crimes they can commit and to watch for police.

One of the deputies asked Soriano if he had any weapons or contraband on him and he replied that he had a “blade” and two syringes in his front pants pocket.  The knife had a four-to-five-inch blade.  Soriano was then arrested.

The Orange County District Attorney’s Office filed an information charging Soriano with carrying a concealed dirk or dagger, a violation of Penal Code § 21310 (a “wobbler” charged as a felony), and misdemeanor possession of drug paraphernalia, a violation of Health & Safety Code § 11364.  The information further alleged a gang enhancement (Penal Code § 186.22(b)(1)), which carries with it a two-year sentence enhancement if found true.

At trial, the prosecution had three deputies testify about gang activities and that Soriano carried the knife for the benefit of the gang and in association with the gang with the intent to promote criminal activity by gang members.  Furthermore, the testimony was that he carried the knife to facilitate committing crimes such as robbery, felony vandalism, assault with a deadly weapon and narcotics sales.

The jury found Soriano guilty of the charged crimes and found true the gang enhancement.  The trial court judge in Santa Ana, Judge Robert Alan Knox, sentenced Soriano to sixteen months on the 21310 violation and then two years consecutive for the gang enhancement.

Soriano appealed the imposition of the gang enhancement to the Fourth Appellate District Court in Santa Ana, arguing that the testimony of the officers was speculative and therefore insufficient for the jury to find the enhancement true.  The Fourth Appellate District Court agreed with Soriano.

The appellate court said that the gang enhancement must be based upon substantial evidence.  “Substantial evidence is evidence that is of ponderable legal significance, reasonable in nature, credible, and of solid value and substantial proof of the essentials which the law requires in a particular case.”  Conservatorship of O.B. (2020) 9 Cal. 5th 989, 1005.

The appellate court then pointed out that the gang enhancement can be applied to a lone actor; however, appellate courts have  - with increasing frequency – reversed gang enhancements for insufficient evidence when the defendant did not commit the underlying crime with other gang members (See, e.g., People v. Perez (2017) 18 Cal. App. 5th 598, 613-614 (insufficient evidence where gang member acting alone shot students at a party); People v. Franklin (2018) 248 Cal. App. 4th 938, 950 (insufficient evidence where crime of false imprisonment was carried out in gang and non-gang territory and defendant’s fellow gang members were unaware of the crime); People v. Ramirez (2016) 244 Cal. App. 4th 800, 819 (insufficient evidence where defendant displayed no gang signs and wore no gang attire); People v. Ochoa (2009) 179 Cal. App. 4th 650, 663-665 (insufficient evidence where gang member committed carjacking by himself and expert testimony alone connected the crime to the gang).

The appellate court then commented that ordinarily, the opinion of a gang expert alone may provide substantial evidence to sustain the elements of a gang enhancement.  People. v. Vang (2011) 52 Cal. 4th 1038, 1048-1049.  However, the expert’s opinion must be “of ponderable legal significance or of solid value.”  People v. Wright (2016) 4 Cal. App. 5th 537, 546.  The expert cannot just recite the defendant’s prior offenses and past gang activities or personal affiliation for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang.”  People v. Ochoa, supra, 179 Cal. App. 4th at 657.

Indeed, “speculative testimony by a gang expert does not constitute substantial evidence to support a gang enhancement.”  People v. Ramon (2009) 175 Cal. App. 4th 843.  It is not enough that the underlying crime be committed in the gang’s territory or with another gang member present.  Id., at 849-851.

Accordingly, the gang enhancement was reversed for Mr. Soriano.