People v. Braggs CA2/5 ( 2023 )

Filed 3/16/23 P. v. Braggs CA2/5
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B301727
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA470870)
v.
BOBBY BRAGGS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, George G. Lomeli, Judge. Reversed in part
and affirmed in part.
Melissa J. Kim, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General,
Lance E. Winters, Chief Assistant Attorney General, Susan
Sullivan Pithey, Assistant Attorney General, William H. Shin,
Roberta L. Davis and Scott A. Taryle, Deputy Attorneys General,
for Plaintiff and Respondent.
The jury found defendant and appellant Bobby Braggs
guilty of second degree robbery (Pen. Code, § 211 [count 1]),1 and
found true the allegations that Braggs used a firearm
(§ 12022.53, subd. (b)), and committed the robbery at the
direction of, in association with, or for the benefit of a criminal
street gang (§ 186.22, subd. (b)(1)(C)). The trial court found true
the allegations that Braggs had suffered a prior strike conviction
(§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) and a prior serious
felony conviction (§ 667, subd. (a)(1)), and had served three prior
prison terms (§ 667.5, subd. (b)).
The trial court sentenced Braggs to a total of 16 years in
prison, consisting of the middle term of three years for the
robbery, doubled to six years under the three strikes law, plus 10
years for the gang enhancement. The court struck the firearm
use enhancement, as well as the enhancements for the prior
serious felony conviction and the three prior prison terms, and
imposed various fines and fees.
On appeal, Braggs contended that there was insufficient
evidence to support the robbery conviction, the gang allegation,
and the firearm allegation. He further contended that the trial
court violated his constitutional rights by failing to hold an
ability to pay hearing prior to imposing certain fines and fees.
The majority affirmed the trial court’s judgment. Justice Baker
concurred in part and dissented in part. He disagreed insofar as
the majority found that the evidence was sufficient to support the
gang enhancement.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
Braggs petitioned for review. The California Supreme
Court granted review and transferred the matter back to this
court with directions to vacate our decision and to reconsider the
cause in light of People v. Renteria (2022) 13 Cal.5th 951(Renteria) and Assembly Bill No. 333 (2021–2022 Reg. Sess.)
(Assembly Bill 333).
We vacate our April 27, 2021 opinion, and now issue this
revised opinion addressing all of Braggs’s arguments, including
his arguments in supplemental briefing that the gang allegation
is not supported by substantial evidence in light of Renteria,
supra, 13 Cal.5th 951 and Assembly Bill 333. The People
challenge Braggs’s argument that the true finding on the gang
allegation was not supported by substantial evidence under the
law in place at the time Braggs was convicted, as that law has
been explained in Renteria. The People concede, however, that
the gang enhancement is not supported by substantial evidence
under Assembly Bill 333, which applies to Braggs’s case
retroactively. The People contest Braggs’s remaining
contentions.
We affirm the robbery conviction and the true finding on
the gun enhancement. We agree with Braggs, however, that the
gang allegation is not supported by substantial evidence under
that law at the time of his jury trial conviction, as clarified by
Renteria.2 We reverse the true finding on the gang enhancement
2 Because we reverse based on Renteria, supra, 13 Cal.5th
951, which requires reversal without permitting the People to
retry the gang allegation, we need not address the issue of the
sufficiency of the evidence supporting the gang allegation under
Assembly Bill 333, which would permit retrial.
3
and remand to the trial court for resentencing. We do not
address Braggs’s arguments regarding his ability to pay fines and
fees, which may be presented to the trial court during
resentencing.
FACTS3
The Robbery
On the afternoon of August 19, 2018, the victim was
leaving a marijuana shop when Braggs approached him and
asked him where he was from. The victim understood that
Braggs was asking whether he was a gang member. He
responded, “I don’t gangbang.”
As the victim was walking to his car, he noticed Braggs
following him. Braggs approached him, and pulled a
semiautomatic gun out of his waistband. Braggs pulled back the
slide of the gun to chamber a bullet, pointed the gun at the
victim, and said, “Give me everything.” Fearing for his life, the
victim gave Braggs some gold jewelry and a red Ferragamo belt
he was wearing. Braggs took the items and ran away.
The victim got into his car and followed Braggs. Braggs
then ran toward the victim’s car and pointed the gun at the
victim. The victim feared he would be shot and drove away.
Once out of harm’s way, the victim pulled over and called the
police.
3The facts are recounted as presented by the prosecution.
Braggs did not put on a case in his defense.
4
The Investigation
Los Angeles Police Department Officer Michael
Dzwoniarek responded to the robbery report. The victim
described the robber to Officer Dzwoniarek as a bald Black man
with a black beard and brown eyes, who was about five feet and
four inches tall, weighed about 175 pounds, and was wearing thin
black glasses. The victim told the officer the robber took eight
items from him: a red Ferragamo belt with a red and gold buckle
containing the Ferragamo logo; a gold Versace chain with a
Versace symbol pendant; a gold rope chain with a pendant
shaped like a money bag; a diamond Rolex ring; a gold Franco
bracelet; a ring with a planet Earth symbol; and two gold rings
with nugget diamonds.
Los Angeles Police Department Detective Emily Delph
obtained a video of the incident taken by a security camera.4 The
camera captured a portion of the sidewalk and street where the
robbery occurred. The video shows in its upper left corner, from a
distance, an interaction between two men. Other individuals can
be seen standing nearby. The interaction is partially obstructed
by parked cars. Afterwards, a bald, bearded Black man wearing
glasses is depicted walking away from where the interaction
occurred, through the middle of the camera’s range. The man
appears to be holding a belt. The man can be seen reaching
toward his waistband several times, as if holding or adjusting
something in the waistband, until he walks out of the camera’s
view.
4 The video was played for the jury at trial.
5
Detective Delph was trained to recognize a person carrying
a concealed weapon, and she testified that it is common for
someone carrying a firearm in their waistband to touch or
manipulate the gun to secure it. She used the video to identify
Braggs as a suspect. She then created a six-pack photographic
lineup that included a picture of Braggs, which she e-mailed to
the victim. The victim responded that he believed Braggs was
the robber.
The victim described his stolen belt to Detective Delph as
red with a red and gold buckle. The belt was never
photographed, and the victim was never shown a photograph of
the belt or asked to identify the belt after it was later recovered.
On August 26, 2018, Braggs was pulled over for a traffic
violation. Officers recovered a worn, red Ferragamo belt with a
gold and red buckle from the back of the car. The arresting
officer estimated that Braggs was approximately five feet six or
seven inches tall, and weighed 145 to 160 pounds.
The Victim’s Statements Regarding the Robber’s Identity
At the preliminary hearing, the victim testified that he was
sure of his identification of Braggs as the robber. When the
victim made the identification from the lineup Detective Delph
sent him, he looked at the array a few times and was sure of his
identification. He testified, “ ‘I had a photographic memory of
him in my head. I know what he looked like.’ ” When asked
about the fact that only two of the six men in the array were
wearing glasses, the victim said he had not noticed. He picked
Braggs’s photograph because he knew Braggs was the robber.
When he reviewed the array again after it was pointed out that
6
only two of the six men were wearing glasses, he maintained that
Braggs was the robber.
At trial, the victim described the robber as approximately
six feet tall, bigger and broader than himself, with a caramel-
color skin tone that differed from Braggs’s dark skin tone, facial
hair, and thin blue rectangular glasses. The victim did not
remember describing the robber to police as being about five feet
four inches tall, about 175 pounds, and in his 40’s. He agreed the
robber was older than him and could have weighed about
175 pounds. The victim testified that he had seen the robber at
the marijuana shop on another occasion before the date of the
robbery, and the robber was not Braggs. The victim knew the
robber continued to go to the marijuana shop. The victim
testified that he had not been to the shop himself since the
robbery; the victim was not asked to explain how he knew that
the robber had continued to go to the shop.
The victim explained that he identified Braggs in the
lineup Detective Delph sent him because Braggs looked “the
closest” to the robber and Braggs was the only person in the
lineup with a bald head and glasses. He identified Braggs at the
preliminary hearing because he “wanted somebody to go down for
the crime.”5
The victim also testified at trial that police had shown him
a photograph of the belt, and he had misidentified it as the one
taken from him during the robbery. The belt was not his. The
victim said it was his because it looked “familiar.” He knew the
belt was not his because it did not look worn enough, and the belt
5The victim was impeached at trial with his preliminary
hearing testimony.
7
buckle was gold. His belt had a silver buckle. He explained that
he was not thinking clearly when he told Detective Delph that
the buckle was gold a few days after the robbery. The victim’s
grandmother had given him the belt on his 18th birthday about
five years before the trial. The victim appreciated designer belts
and was knowledgeable regarding them.
Gang Evidence
Los Angeles Police Department Officer Mark Rakitis was
one of the officers who arrested Braggs. He testified as an expert
on the Eight Tray Gangster Crips gang (Eight Tray). The gang
had between 200 and 250 active members, and its primary
activities included felony vandalism, vehicle theft, sales and
transportation of illegal narcotics, unlawful possession of
firearms, aggravated assault, robbery, mayhem, and murder.
Officer Rakitis opined that Braggs was an Eight Tray
member. Several factors led the officer to this conclusion:
Braggs had told Officer Rakitis that he was a former member of
Eight Tray, and Braggs was driving through Eight Tray territory
with a known active Eight Tray gang member when he was
arrested. The officer explained that gang members often told
police officers they were former members of a gang to avoid
admitting active gang membership. The robbery was committed
in Eight Tray territory, and robbery was one of the gang’s
primary activities.
Based on a hypothetical scenario mirroring the facts of this
case, Officer Rakitis opined that the robbery was committed for
the benefit of Eight Tray. He explained that the question,
“Where are you from” was “a challenge of gang affiliation” that
8
the victim understood. The subsequent commission of a robbery
within the gang’s territory would benefit the gang by creating a
reputation for violence and power. The location where the
robbery was committed was Eight Tray territory, but control over
it was contested by a rival gang. Gangs maintain their territory
by committing crimes within it to intimidate members of the
community, dissuade community members from cooperating with
police, prevent encroachment by rival gangs, and attract new
young members.
Officer Rakitis sometimes had difficulty convincing
witnesses who lived in Eight Tray territory to testify in court and
cooperate with law enforcement. People who lived in the gang’s
territory told the officer they were afraid the gang would target
them or their families. The victim in this case lived within Eight
Tray territory.
DISCUSSION
Sufficiency of the Evidence
Braggs challenges the sufficiency of the evidence against
him with respect to his conviction for robbery and the true
findings on the gang and firearm use allegations. We conclude
that substantial evidence supports Braggs’s conviction and the
jury’s true finding with respect to the gun use allegation.
Substantial evidence does not support the jury’s finding that
Braggs committed a felony for the benefit of, at the direction of,
or in association with a criminal street gang with the intent to
promote, further, or assist in criminal conduct by gang members,
however. We reverse the true finding on the gang allegation and
9
remand the matter to the trial court for resentencing, but
otherwise affirm the judgment.
Legal Principles
When reviewing for sufficiency of the evidence, “ ‘ “ ‘[t]he
court must review the whole record in the light most favorable to
the judgment below to determine whether it discloses substantial
evidence—that is, evidence which is reasonable, credible, and of
solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ ” ’ ” (People v.
Casares (2016) 62 Cal.4th 808, 823, disapproved of on another
ground in People v. Dalton (2019) 7 Cal.5th 166, 214; see People v.
Clark (2011) 52 Cal.4th 856, 942–943; Jackson v. Virginia (1979)
443 U.S. 307, 321 [federal due process requires proof “sufficient
to have led a rational trier of fact to find guilt beyond a
reasonable doubt”].) “ ‘The standard of appellate review is the
same in cases in which the People rely primarily on
circumstantial evidence.’ [Citation.] ‘. . . [I]t is the jury rather
than the reviewing court that weighs the evidence, resolves
conflicting inferences and determines whether the People have
established guilt beyond a reasonable doubt.’ ” (Casares, at
p. 823.) This standard applies to assessing the sufficiency of the
evidence to support a true finding on an enhancement allegation.
(People v. Vargas (2020) 9 Cal.5th 793, 820.)
Robbery
Braggs claims that the evidence presented was insufficient
to support his robbery conviction because the victim recanted his
10
identification and gave a reasonable explanation for why his
testimony at trial differed from his statements to law
enforcement and his testimony at the preliminary hearing.
Braggs concedes that a single eye witness identification may be
sufficient to establish a perpetrator’s identity beyond a
reasonable doubt, but argues that in this case the victim’s
testimony is inherently improbable, and the conviction must be
reversed.
We disagree with Braggs’s conclusion that the victim’s
initial testimony was inherently improbable simply because the
victim offered a cogent explanation for his starkly different
testimony at trial; the prosecution offered an equally cogent
reason to support the conclusion that the victim’s statements to
law enforcement and at the preliminary hearing were true. The
victim was very confident of his identification of Braggs in his
earlier descriptions, stating that he had a “photographic memory”
of Braggs. Officer Rakitis explained that gangs often intimidated
witnesses, and that it was not uncommon for a witness to recant
an identification at trial out of fear of violence. The jury could
reasonably infer that the victim, who lived within gang territory,
changed his testimony because he was afraid of reprisal. It is of
no moment that the record also includes sufficient evidence that
could support a finding that the victim lied when he first
identified Braggs because he was angry and wanted someone to
“go down for the crime.” There was substantial evidence in
support of both positions, and it was the jury’s duty to determine
which version of the victim’s testimony to credit. (Evid. Code,
§ 411 [testimony of single witness is generally sufficient to prove
any fact]; People v. Rivera (2019) 7 Cal.5th 306, 331 (Rivera) [“ ‘If
the circumstances reasonably justify the trier of fact’s findings,
11
reversal of the judgment is not warranted simply because the
circumstances might also reasonably be reconciled with a
contrary finding’ ”]; People v. Friend (2009) 47 Cal.4th 1, 41
(Friend) [conflicts in evidence are for jury to resolve; where jury
has credited statements by witness, appellate court can reject
those statements only if they are physically impossible or facially
false].)
Moreover, the victim’s identification of Braggs as the
perpetrator based on the photographic array was corroborated by
other evidence presented at trial. The victim originally described
to Detective Delph the belt that Braggs stole as red, with a
Ferragamo logo and a gold buckle. A belt of that description was
found in the backseat of the car Braggs was driving when he was
arrested. The probability of the wrong belt and the wrong man
matching the descriptions that the victim initially gave was low
in light of the distinctive appearance of the belt. The video also
depicts a man carrying a belt. The appearance of the man on the
video is consistent with Braggs’s appearance and with the
victim’s initial description of the perpetrator. The jury could
reasonably conclude that the man depicted in the video was
Braggs. We will not second guess the jury’s finding that Braggs
is the individual who committed the robbery, as there is
substantial evidence on which to base such a finding. (Evid.
Code, § 411; Rivera, supra, 7 Cal.5th at p. 331; Friend, supra,47 Cal.4th at p. 41.)
Firearm Use Enhancement
Section 12022.53, subdivision (b) provides that “any person
who, in the commission of a [robbery], personally uses a firearm,
12
shall be punished by an additional and consecutive term of
imprisonment in the state prison for 10 years. The firearm need
not be operable or loaded for this enhancement to apply.” Toy
guns do not qualify as a firearm, nor do pellet guns or BB guns.
(People v. Monjaras (2008) 164 Cal.App.4th 1432, 1435
(Monjaras).) Whether a defendant used a firearm in the
commission of the robbery is for the trier of fact to decide and
may be established by direct or circumstantial evidence. (People
v. Wilson (2008) 44 Cal.4th 758, 806; People v. Rodriguez (1999)
20 Cal.4th 1, 12–13.
Braggs first argues that the firearm enhancement is not
supported by substantial evidence because a gun is not visible in
the surveillance video of the robbery. The argument lacks merit.
The victim testified that the robber pointed a gun at him both
during the robbery and when the victim attempted to retrieve his
possessions by driving his car to follow the robber. Although no
gun is depicted in the video, the video does not show the robbery
in its entirety. The interaction takes place at the point furthest
away from the camera’s view, and the perpetrator’s hands are not
always visible. The video does not depict any part of the
interaction between the robber and the victim after the robber
stole the victim’s property and the victim pursued him. Because
the video does not preclude the possibility that a gun was used,
the victim’s testimony was not inherently improbable, and is
sufficient to support the finding that Braggs used a gun in the
robbery. (Evid. Code, § 411; Rivera, supra, 7 Cal.5th at p. 331;
Friend, supra, 47 Cal.4th at p. 41.)
Additionally, Detective Delph, who had been trained to
identify when a person was carrying a concealed weapon,
testified that people will often carry concealed weapons in their
13
waistbands, and that law enforcement officers are taught to focus
on a suspect’s hand motions to determine whether an individual
has a weapon. The detective testified that it is “common for a
person with a gun in the waistband to touch it or manipulate it
with their hand, or maybe to touch it to secure it.” The video
depicted Braggs, as he walked away from where he robbed the
victim, touching his waistband in a manner consistent with the
detective’s description of a person carrying a concealed weapon.
A jury could reasonably conclude that Braggs used a firearm in
commission of the robbery, based on Braggs’s movements shown
in the video.
Braggs next argues that the victim’s visual observation of
the gun was insufficient to establish that the weapon was real.
We disagree. The victim testified that when the robber
approached him, he pulled out a gun, cocked the weapon, pointed
it at the victim, and ordered the victim to “[g]ive me everything
you’ve got.” The victim was familiar with firearms through
exposure to them at a gun range. He understood the difference
between a revolver and a semi-automatic gun, and identified the
robber’s gun as a semi-automatic weapon. The victim
demonstrated the robber’s actions in court, which the prosecutor
verbally described as “—the witness has reached under—with his
right hand under his shirt at his left waist, pantomimed
removing what appears to be—pantomiming removing a firearm
from his left waistband and pulling—pulling the slide of the
firearm back and releasing.” The victim agreed with the
prosecutor’s description. The victim testified that he understood
that by “cock[ing]” the gun the robber was loading a bullet in the
chamber.
14
Although it is unclear, Braggs appears to contend that a
victim’s testimony that he or she visually observed a firearm does
not constitute a “sensory perception” of the firearm, and is
therefore insufficient to establish that the weapon is a real
firearm and not a toy. He urges us to reject Monjaras, supra,
164 Cal.App.4th 1432, which held that “ ‘words and actions, in
both verbally threatening and in displaying and aiming [a] gun at
others, [can] fully support[ ] the jury’s determination the gun was
sufficiently operable [and loaded].’ ” (Id. at p. 1437.)
We do not interpret the relevant case law to suggest that
seeing a firearm is not in itself a sensory perception, but even if
additional sensory perception were required, Braggs’s use of the
weapon was consistent with the use of an actual firearm, and
would be sufficient to support the jury’s firearm use finding. In
Monjaras, supra, 164 Cal.App.4th at page 1436, the “defendant
demanded of the female victim, ‘Bitch, give me your purse,’ then
pulled up his shirt and displayed the handle of a black pistol
tucked in his waistband. The victim, who had seen guns before
but had never handled one, testified she immediately saw that
the pistol looked like a gun, and it made her scared. She
‘assumed’ the pistol was ‘real’ and handed over her pocketbook.
When asked by [the] defendant’s trial attorney what the pistol
was made of, the victim said: ‘Probably metal because—I don’t
know. Wasn’t wood, wasn’t plastic. I don’t know if it was plastic
or metal. . . . He don’t show it to me. He just do “this” to me
[pulled up his shirt and displayed the pistol].’ The victim then
conceded that she could not say for certain whether it was ‘a toy
or real or not.’ ” The Court of Appeal held that the “jury was not
required to give defendant the benefit of the victim’s inability to
say conclusively the pistol was a real firearm. This is so because
15
‘[the] defendant’s own words and conduct in the course of an
offense may support a rational fact finder’s determination that he
used a [firearm].’ [Citation.]Indeed, even though for purposes of
section 12022.53, subdivision (b), a firearm need not be loaded or
even operable, ‘words and actions, in both verbally threatening
and in displaying and aiming [a] gun at others, [can] fully
support[ ] the jury’s determination the gun was sufficiently
operable [and loaded].’ [Citation.}Accordingly, jurors ‘may draw
an inference from the circumstances surrounding the robbery
that the gun was not a toy.’ ” (Id. at pp. 1436–1437.)
In this case, the evidence that Braggs used a firearm to
threaten the victim was even stronger than the evidence that was
found to be sufficient in Monjaras. Unlike the victim in
Monjaras, here the victim’s certainty that what he saw was a
firearm was not brought into question at trial. The victim
testified he was familiar with firearms and how they operated,
and identified the gun that Braggs used in the robbery as a semi-
automatic weapon. Even if the victim’s visual identification was
insufficient, the jury could infer from the manner in which
Braggs used the gun that it was not a toy. Our Supreme Court
has held, “If the weapon cannot be found, the jury may be
instructed by the court that it may draw an inference from the
circumstances surrounding the robbery that the gun was not a
toy. Testimony to the effect that the defendant was flourishing
the pistol or pointing it at the victim and was using threatening
words or conduct indicating that he intended to fire it if his
demands were not met would be evidence from which the
inference could be drawn.” (People v. Aranda (1965) 63 Cal.2d
518, 533.) Here, the victim testified that the robber “cocked” the
gun, and pantomimed the robber pulling back the slide to
16
chamber a bullet. He testified that the robber demanded that he
give him everything he had while pointing the gun at him. This
is substantial evidence from which a jury could reasonably
conclude that the gun was real.
Gang Allegation
“Section 186.22 adds various sentencing enhancements for
gang-related felonies” to the Penal Code. (People v. Mejia (2012)
211 Cal.App.4th 586, 613.) At the time of Braggs’s trial, “section
186.22[, subdivision (b)(1)(C)] require[d] proof of only two
elements: (1) that the defendant committed a felony for the
benefit of, at the direction of, or in association with any criminal
street gang and (2) that he did so with the intent to promote,
further, or assist in criminal conduct by gang members.” (Ibid.,
italics omitted.)
“Not every crime committed by a gang member is gang
related. [Citations.] Nor can a crime be found to be gang related
simply because the perpetrator is a gang member with a criminal
history. [Citation.] Although a lone actor is subject to a gang
enhancement, merely belonging to a gang at the time of the
commission of the charged conduct does not constitute
substantial evidence to support an inference the sole actor
specifically intended to promote, further, or assist any criminal
conduct by gang members.” (People v. Perez (2017)
18 Cal.App.5th 598, 607.)
In Renteria, supra,13 Cal.5th 951, our Supreme Court
clarified what showing the prosecution must make under section
186.22, subdivision (b)(1)(C) when the defendant has acted
17
alone.6 Renteria explained that “in cases where multiple gang
members were involved in the charged offense, the fact of their
joint involvement in a crime often provides sufficient evidence of
association and benefit, as well as circumstantial evidence of an
intent to promote the criminal activity of other gang members, in
connection with the very same criminal offense.” (Id. at p. 963.)
“But in a case involving a lone actor, operation of the statute
turns, at bottom, on the nature of the individual’s actions and
reasons for committing the underlying felony.” (Id. at p. 965.)
“[D]ue process requires there be a significant connection
between the defendant’s ‘guilty knowledge and intent’ and the
criminal conduct of the defendant’s associates—that is, ‘concrete’
and ‘practical’ encouragement of ‘specifically illegal activities.’ ”
(Renteria, supra, 13 Cal.5th at p. 965.) Additionally, “the statute
refers to the intent to promote ‘criminal conduct by gang
members’ (§ 186.22(b)(1), (4), italics added), . . . [citation]—which,
in a lone-actor case, necessarily means the promotion of conduct
other than the commission of the underlying felony.” (Id. at
pp. 965–966.) Although the prosecution may present expert
testimony on criminal street gangs to meet its burden, “[w]ithout
more, generalized expert opinion that commission of a particular
crime enhances the gang’s power in the community by increasing
its reputation for violence” is insufficient. (Id. at p. 966.) The
6 Renteria, supra, 13 Cal.5th at page 961, did not address
the effect of Assembly Bill 333, even though the legislation
became effective while Rentaria’s case was pending; because the
court concluded that the evidence was insufficient to sustain the
gang allegations even under the law at the time of the Rentaria’s
trial, there was no need to analyze the changes in law effected by
Assembly Bill 333.
18
“statute requires a closer connection between the defendant’s
crime and the conduct of the gang and its members than
generalized community reputation testimony can provide.” (Id.
at p. 967.) Reputation evidence must be “grounded in specific
facts that show the defendant acted on behalf of a gang rather
than for personal reasons.” (Id. at p. 968.) Factors that courts
have considered in this determination include “whether the
defendant’s gang membership was apparent to observers,
whether the victim was a gang member or rival of the defendant’s
gang, and whether retaliation for prior gang activity or disputes
prompted the defendant’s crime.” (Ibid.)
The requisite particulars set forth in Renteria are absent
here. Braggs acted alone in committing the crimes, and there is
insufficient evidence of a “significant connection” between his
intent in committing the robbery and the criminal conduct of
other Eight Tray members. (Renteria, supra, 13 Cal.5th at
p. 965.)
Substantial evidence was presented to support the
conclusion that Braggs was an Eight Tray member within the
boundaries of the gang’s territory, but section 186.22, subdivision
(b)(1) “does not criminalize mere gang membership.” (People v.
Gardeley (1996) 14 Cal.4th 605, 623–624; see People v. Mesa
(2012) 54 Cal.4th 191, 196–197.) Nor does the location where an
offense took place speak to intent in the absence of other factors
from which intent could be inferred.
The prosecution offered expert testimony that criminal
activity by one gang member boosts the reputation of the gang
overall thereby benefitting the gang, but this generic testimony
was unsupported by evidence from which it could be inferred that
Braggs intended to boost Eight Tray’s reputation. Braggs issued
19
a gang challenge by asking the victim where he was from. The
victim understood the challenge and was frightened by it. Braggs
did not announce which gang he belonged to, and there was no
evidence adduced that the victim, or any bystander, knew
Braggs’s specific gang affiliation. The victim did not indicate that
he was from a rival gang, which might have supported an
inference that he knew the identity of Braggs’s gang. The victim
stated that he did not gangbang and gave no indication that he
knew Braggs was from Eight Tray, rather than some other gang.
While the challenge plus the location within Eight Tray
territory may have been probative under different circumstances,
here the prosecution’s gang expert testified that a rival gang was
contesting Eight Tray’s control over the area in which the offense
took place, and that under such circumstances both gangs would
commit crimes within the contested area to gain control over it.
There was no evidence that the victim or members of the
community would have understood Braggs to mean he was a
member of Eight Tray, as opposed to the rival gang, precisely
because this was contested territory, as the expert testified.
Under these circumstances, there is insufficient evidence that
Braggs’s challenge would in fact benefit Eight Tray or that
Braggs subjectively intended to benefit the gang.
The evidence indicates that Braggs’s generic gang
challenge benefitted him personally—people are afraid of gangs
and are more likely to comply when confronted with a member of
any gang. That Braggs intended to benefit Eight Tray
specifically is speculation.
Finally, there is no evidence that Braggs’s conduct was
intended to support specific criminal activity by other Eight Tray
gang members. The instant robbery cannot constitute the
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criminal activity by other gang members that the statute
requires—there must be “‘concrete’ and ‘practical’ encouragement
of ‘specifically illegal activities.’ ” (See Renteria, supra,
13 Cal.5th at p. 965.) The prosecution did not present evidence
that Braggs’s conduct did or would promote other specific
criminal conduct by Eight Tray members. Accordingly, we must
reverse the jury’s finding that the robbery was committed for the
benefit of a criminal street gang.
We accept the People’s concession that, if this court were to
conclude that the jury’s finding was not supported by substantial
evidence under the law at the time of Braggs’s trial, as we do,
double jeopardy bars retrial on that gang allegation. (Burks v.
United States (1978) 437 U.S. 1, 11; People v. Rodriguez (2018)
4 Cal.5th 1123, 1129.)
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DISPOSITION
The true finding on the gang enhancement under Penal
Code section 186.22, subdivision (b)(1)(C) is reversed and the
matter is remanded to the trial court for resentencing. The
judgment is otherwise affirmed. The court shall prepare an
amended abstract of judgment reflecting the modified sentence
and forward a copy of the abstract of judgment to the Department
of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
MOOR, J.
We concur:
BAKER, Acting P. J.
KIM, J.
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