People v. Ware ( 2022 )


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  •         IN THE SUPREME COURT OF
    CALIFORNIA
    THE PEOPLE,
    Plaintiff and Respondent,
    v.
    VICTOR WARE et al.,
    Defendants and Appellants.
    S263923
    Fourth Appellate District, Division One
    D072515
    San Diego County Superior Court
    SCD255884
    December 1, 2022
    Justice Kruger authored the opinion of the Court, in which
    Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,
    Groban, Jenkins, and Guerrero concurred.
    PEOPLE v. WARE
    S263923
    Opinion of the Court by Kruger, J.
    Defendant Nicholas Hoskins was charged with and
    convicted of conspiracy to commit murder, for which he was
    sentenced to 25 years to life. The charged conspiracy consisted
    of a two-year-long agreement among at least 20 gang members
    to kill members of rival gangs, without agreement as to any
    specific times, persons, or places where killing would take place.
    There was no evidence that Hoskins had committed or
    participated in any act of violence. The prosecution instead
    sought to tie Hoskins to the charged conspiracy primarily
    through evidence of his gang membership, access to weapons,
    and social media posts celebrating violence against rival gangs.
    Hoskins argues this evidence is insufficient to support a
    conviction for conspiracy to commit murder. Reviewing the
    entire record in light of established principles of conspiracy law,
    we agree. We reverse the judgment of the Court of Appeal and
    remand for further proceedings.
    I.
    A.
    In the early 2010’s, a violent conflict broke out among
    criminal street gangs in the San Diego area. The conflict was
    sparked by the April 2011 killing of Dereck Peppers, who was a
    member of the 5/9 Brim criminal street gang, a set of the Bloods
    gang. In response to the killing, the Brim gang declared war on
    1
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    rival Crips gangs, leading to a spike in gang-related shootings
    that resulted in multiple injuries and deaths.
    Hoskins was a member of the 5/9 Brim gang. The
    prosecution charged him, along with fellow gang members
    Dionte Simpson and Victor Ware, with multiple offenses
    stemming from the events of the early 2010’s. Among other
    things, the prosecution alleged that all three were participants
    in a conspiracy spanning a roughly two-year period between
    January 1, 2012, and April 23, 2014, and involving at least 20
    Brim members in total. The prosecution alleged the object of
    this conspiracy was the murder of rival gang members.
    At trial, the prosecution presented evidence that both
    Simpson and Ware had either committed or aided and abetted
    shootings aimed at rival gang members. By contrast, the
    prosecution presented no evidence that Hoskins either
    committed or aided and abetted any act of violence. Nor did the
    prosecution present direct evidence that Hoskins agreed with
    others to commit violent acts.          To establish Hoskins’s
    participation in the charged conspiracy, the prosecution instead
    relied on four categories of circumstantial evidence: (1) evidence
    of Hoskins’s gang membership; (2) evidence that Hoskins had
    access to a gun on at least one occasion during the conspiracy;
    (3) evidence of Hoskins’s involvement in the events surrounding
    the August 27, 2013, shooting of Byreese Taylor; and
    (4) evidence of Hoskins’s social media posts celebrating violence
    against rival gangs. Because this case concerns a challenge to
    the sufficiency of the evidence against Hoskins, we will describe
    each category of evidence in some detail.
    1. Evidence of gang membership.   The prosecution
    presented  extensive  evidence establishing  Hoskins’s
    2
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    membership in both the 5/9 Brim and a subset of the gang
    known as the “Hit Squad.” This evidence included a photograph
    showing a large “B” tattooed on Hoskins’s chest, as well as
    photographs from Hoskins’s phone and social media accounts in
    which he or other gang members made Brim or “Crip killing”
    gang signs and wore red clothing associated with the gang. In
    addition, Hoskins was a member of the Southside Brim Gang
    Facebook group. In his social media posts, he used unusual
    spelling and terminology common among Brim members,
    replacing the letter “C” with either a “K” or “Ck” (for “Crip killer”
    or “Crip killing”) or “B” (for “Blood”), and occasionally signing off
    his posts with “5/9” (for the 5/9 Brim). One of his nicknames was
    “Bick Nick.” The prosecution also introduced a photograph
    showing another one of Hoskins’s nicknames written on the wall
    of a house belonging to an alleged coconspirator, alongside the
    nicknames of other Brim and Hit Squad members. Finally, a
    witness familiar with the defendants testified that Hoskins was
    part of the Hit Squad, also known at various times as the “Young
    Hit Squad” and the “Tiny Hit Squad.” According to the witness,
    this subset of the Brims had more “shooters” and “K’s,” meaning
    “kills,” than another subset, the “Hound Unit.”
    2. Access to firearms. The prosecution presented evidence
    that in February 2012, Hoskins was riding in a car that was
    pulled over for a faulty license plate light. Hoskins and the two
    other people in the car — both alleged 5/9 Brim members —
    were eventually searched, and Hoskins was found with a loaded
    firearm concealed in a sock tucked into his pants. Hoskins was
    arrested with a fellow Brim member. While the two were in the
    patrol car, Hoskins told the other Brim member that he would
    take responsibility for the gun and other contraband found in
    3
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    the car. There was no evidence linking the gun to any prior
    shootings.
    The prosecution also presented evidence that in August
    2012, Hoskins and an unidentified male were questioned by
    police officers based on a suspected curfew violation. (In fact,
    Hoskins was 19 years old at the time, so the curfew did not
    apply.) Hoskins was questioned in front of the driveway of a
    house on Florence Street and initially gave the police a false
    name. At some point, the unidentified male who was with
    Hoskins walked to the backyard of that house. Officers later
    recovered a loaded revolver from the backyard. They had not
    seen Hoskins enter the backyard, nor was there any evidence
    that Hoskins knew about the gun.
    3. Shooting of Byreese Taylor. On August 27, 2013, Taylor
    was walking in West Coast Crips (WCC) territory when he was
    shot by a passenger riding in the front seat of a car. The
    passenger, who was wearing a red cloth over his face, was not
    identified; the driver of the car was Timothy Hurst, a 5/9 Brim
    member. According to the prosecution’s gang expert, the
    shooting appeared to be a mistake: Taylor was not a rival gang
    member, but a member of a gang allied with the Brims. Hurst
    was later arrested for and convicted of the shooting.
    The evidence showed Hoskins was a longtime friend of
    Hurst’s. Their grandmothers were neighbors, and the two men
    had grown up together and remained close friends. After Hurst
    was arrested, officers searched his car and found a mixture of
    DNA on the passenger side of the vehicle from at least four
    individuals, including Hoskins’s as “a possible major contributor
    to that mixture.” The prosecution expert could not, however,
    determine when the DNA had entered the van or whether it had
    4
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    arrived through direct contact or was transferred from another
    object.
    To link Hoskins to the Taylor shooting, the prosecution
    introduced several photographs of Hoskins and his alleged
    coconspirators that were taken in the vicinity of the shooting.
    This included a photograph, uploaded to Hoskins’s Facebook
    account on February 21, 2013 — about six months before the
    Taylor shooting — showing Hurst “tossing up 5/9 Brim and Crip
    killer” signs. The prosecution noted that the photograph was
    taken at a known WCC hangout about a mile from where Taylor
    was shot and argued that the photograph demonstrated the two
    were “laying the groundwork” for the Taylor shooting. The
    prosecution also introduced two photographs — posted on
    Instagram by another Brim member, Edward Paris, on the
    morning of August 27, 2013 — showing Hoskins and Paris
    standing in the same park, throwing up gang signs, and
    appearing to give the middle finger to WCC. The photographs
    were taken about seven hours before Taylor was shot and one
    mile away from the location of the shooting.
    The prosecution also introduced Facebook messages that
    Hoskins sent after the shooting to Taylor and Hurst’s girlfriend,
    in which Hoskins discussed the case against Hurst and tried to
    dissuade Taylor from testifying so that Hurst could “beat his
    [c]ase.”  Hoskins threatened to reveal that Taylor was
    “snitching” to the police, but ultimately did not carry out this
    threat.
    About six months after the shooting, Hoskins posted on
    Facebook: “I switch up on bitcKh [n-words] fast I Love my Bros
    But I’m truer to the Kode sHit I’d turn on TB if he did some gay
    5
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    sHit and vise versa nuttin personal #onBrims.”1 “TB” referred
    to Hurst, who was also known as “Tim Brim.” According to the
    prosecution’s gang expert, Hoskins meant that he “love[d] his
    gang,” but was “truer to the code, the code being no snitching.”
    The expert suggested Hoskins meant to call out Hurst for
    talking to the police about the circumstances of the shooting.
    4. Social media posts. Hoskins was active on social media,
    and the prosecution introduced extensive evidence of his social
    media posts and photographs, as well as photographs of Hoskins
    uploaded to other 5/9 Brim members’ accounts, to demonstrate
    Hoskins’s awareness and approval of the violent rivalry against
    Crips. The prosecution argued that Hoskins’s social media
    activity provided a “window” into his mind: his posts were “his
    words,” gave the jury “an idea of the mindsight of Mr. Hoskins,”
    and reflected a desire to “tell[] the world on Facebook” that he
    was serious about his “Crip killing.” The prosecution also
    argued that Hoskins used social media to disrespect rival gang
    members. He was Facebook “friends” with at least two rival
    gang members, one of whom was a victim in a shooting allegedly
    committed by a Brim member, indicating that at least some
    rival gang members could view his Facebook posts. Though
    some of Hoskins’s status updates could be seen and commented
    on by nonfriends, it was otherwise unclear which of his posts
    were publicly accessible and which were visible only to his
    Facebook friends.
    1
    Throughout this opinion, we quote the relevant
    communications as they appeared in Hoskins’s original social
    media posts, including his spelling and capitalization. But
    consistent with the approach taken in the Court of Appeal and
    by the parties, we use the term “n-word” rather than the original
    that appeared in the posts.
    6
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    Some of the posts were close in time or location to gang-
    related shootings, which the prosecution offered as proof that
    Hoskins was “encouraging, promoting, and furthering the
    violence.” For example, in April 2012, several days after a rival
    Crips gang member was shot, Hoskins posted on Facebook that
    “cKrossys” — referring to the Crips — “got Hit, all I need is some
    Dro and my day is set.”2 Two 5/9 Brim members were later
    prosecuted for the shooting and convicted. In February 2013,
    Hoskins posted a photograph of Hurst standing at a
    recognizable street intersection, near the site of a January 2012
    shooting in WCC gang territory that was linked to the Brims.
    The prosecution suggested Hoskins posted the photograph to
    “brag about” the 2012 shooting.
    Other posts seemingly taunted rivals. In February 2013,
    Hoskins posted a photograph of himself in a well-known WCC
    park with the caption, “cKome Out nd play! We out Here! Earth
    is my turf & dats #OnMyTurf!” In his opening statement, the
    prosecutor emphasized that “[i]n the world of gangs, respect is
    paramount,” and that going into rival gang territory and
    “post[ing] it for everyone to see” is “incredibly disrespectful.” In
    March 2014, WCC member Paris Hill was murdered. The 5/9
    Brims were not suspected to be involved in Hill’s death. A few
    days later, Hoskins posted on Facebook: “That’s some gay sHit
    not Gansta yall getBacK taggin in the set? That’s all yo
    DeadHomie worth? That’s why I kall yall cKraBs.” The
    prosecution argued that Hoskins knew some WCC members
    would see his message and was mocking them for their response
    2
    The full Facebook post read: “Son was Born healthy.
    cKrossys got Hit, all I need is some Dro and my day is set lol
    #Happy Easter!”
    7
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    to Hill’s death, calling them a derogatory term for Crips
    members, “crabs.” Hoskins also posted that message hours after
    WCC gang member Carlton Blue had been shot; the Brims were
    suspected to be involved in Blue’s shooting. The prosecution
    also introduced various online exchanges, including messages
    between Hoskins and a rival WCC member taunting each other
    about a brief encounter on the street.
    Finally, the prosecution introduced a number of Hoskins’s
    Facebook posts in which he celebrated violence against rival
    gangs and described his life as a gang member. In one post,
    Hoskins wrote that he was “tired of grindin, fighting, runnin,
    jail, death, stress, betrayal and everything else this game has to
    offer but it’s what we signed up for right?” On other occasions,
    he wrote, “Never BacK Down is the MuthafucKin motto!” and
    “Violence may Be the easy thing to do But I like easy, it makes
    sense! #9s!,” with “#9s” referring to the 5/9 Brims. In a separate
    post, Hoskins wrote in part, “Bl59ds kill rips & rips kill Bl59ds
    [n-words] . . . these are all things we already know so why do we
    trip? Started with a cKhoicKe,” which the prosecution’s gang
    expert translated in part to, “Bloods kill Crips. Crips kill
    Bloods.” Hoskins also explained what it meant to be an “OG or
    older homie/general,” writing that gaining such an elevated
    status “isn’t established by age or how long you been around I
    mean it Kount But u need the stripes and reputation to matcKh.
    Bighomie lol.” According to the prosecution’s gang expert, this
    meant that building one’s status and reputation within the gang
    required putting in the “work,” which could involve “some type
    of mission,” such as a burglary, robbery, or shooting. To prove
    that Hoskins had acquired an elevated status, the prosecution
    introduced Facebook evidence of Hoskins identifying himself as
    “Big Bick Nick” and of a fellow Brim member identifying himself
    8
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    as “Little Bick Nick”; according to the prosecution’s expert, it
    was a sign of respect for a younger member to take an older
    member’s name, and this usually indicated that the older
    member was “working towards OG status.”
    The prosecution also called attention to several of
    Hoskins’s Facebook posts, including: (1) a February 2013
    photograph of Hoskins making the Crip killer hand sign with
    the caption, “Spell it BicK NicK tell he really Bout his cK’s,” with
    “cK’s” meaning “Crip killing,” (2) a May 2014 photograph of
    Hoskins wearing a red bandana around his face, with the
    caption, “Rags around our facKe to Beat the Kase inKase a [n-
    word] look 5/9 BrimGang,” accompanied by several terms
    related to the rival WCC and Neighborhood Crips (NC) gangs,
    and (3) a May 2014 status update, “Ganstas don’t flicK it with
    gigs they use em,” which the prosecution gang expert translated
    as, “Real gangsters don’t take pictures with their guns. They
    use them.” The prosecution also introduced a March 2014 post
    from Hoskins: “My okkupation Steal,Kill,&Deal everything
    gotta prise even your life.” The prosecution’s gang expert
    explained this meant that Hoskins saw his job as to “steal, kill,
    and deal,” and that, as part of his work, he would “put a value
    on anything,” “even your life.” The prosecution’s gang expert
    also acknowledged, however, that not every 5/9 Brim member
    who displayed “Ck” on social media killed Crips; that some
    members might “do it strictly on social media,” meaning only
    post about Crip killing without actually doing so; and that not
    all Brim members commit crimes.
    B.
    The jury found Hoskins and his codefendants guilty of
    conspiracy to commit murder, in addition to other offenses.
    9
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    Hoskins was also convicted of participation in a criminal street
    gang conspiracy, in violation of Penal Code section 182.5, while
    his two codefendants were convicted of various offenses
    including attempted murder. As to all three defendants, the
    jury found the conspiracy was for the benefit of a criminal street
    gang.    (Pen. Code, § 186.22, subd. (b)(1).) Hoskins was
    sentenced to 25 years to life in prison. (Id., §§ 182, subd. (a)
    [conspiracy], 187, subd. (a) [murder].)
    On appeal, Hoskins challenged the sufficiency of the
    evidence supporting his convictions. The Court of Appeal
    reversed the gang conspiracy conviction for lack of evidence
    establishing a particular element of that offense. 3 But the court
    rejected Hoskins’s challenge to his murder conspiracy
    conviction, finding sufficient evidence that Hoskins and his
    alleged coconspirators “came to a mutual understanding to
    murder rival NC and WCC gang members and that [Hoskins]
    participated in the conspiracy.” (Ware, supra, 52 Cal.App.5th at
    p. 939.) Though the court acknowledged that “the prosecution
    failed to prove that [Hoskins] was a direct participant or aider
    and abettor in any of the shootings,” it found sufficient evidence
    from which a jury could conclude Hoskins knew about the
    conspiracy and had the requisite intent to join it and facilitate
    the object offense. (Id. at p. 941.)
    The Court of Appeal identified several pieces of evidence
    in support of its conclusion. First, the court pointed to Hoskins’s
    3
    Specifically, the court concluded there was no evidence
    Hoskins had promoted, furthered, assisted, or benefited from
    “ ‘any felonious criminal conduct’ ” by 5/9 Brim members, as
    opposed to conduct not constituting a felony. (People v. Ware
    (2020) 
    52 Cal.App.5th 919
    , 951 (Ware).) The court’s ruling on
    Hoskins’s gang conspiracy conviction is not before us.
    10
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    social media posts about “Crip killing,” including photographs of
    Hoskins “tossing the gang sign for Tiny Hit Squad” and “ ‘CK’ ”;
    his nickname of “ ‘Bick Nick’ ”; and his Facebook posts that he
    was “really about his Crip killing” and his “ ‘occupation’ ” was to
    “ ‘steal, kill, and deal.’ ” (Ware, supra, 52 Cal.App.5th at
    pp. 941–942.)
    The court next pointed to evidence concerning Hoskins’s
    proximity to firearms, including his prior arrest with a
    concealed gun and one-time proximity to a loaded revolver,4 as
    well as his Facebook post that, according to an expert, meant
    “gangsters do not take photographs with guns, they use them.”
    (Ware, supra, 52 Cal.App.5th at p. 942.) From this evidence, the
    court concluded, a jury could infer “Hoskins carried firearms and
    had the intent to use them.” (Ibid.)
    The Court of Appeal also pointed to certain Facebook posts
    that seemed to celebrate violence against Crips members and
    were made close in time to two shootings allegedly part of the
    conspiracy. The court held a jury could reasonably infer that
    Hoskins’s April 2012 post about a Crips member getting shot —
    “cKrossys got Hit” — was about the shooting of a rival gang
    member just days earlier. (Ware, supra, 52 Cal.App.5th at
    p. 942.) A jury could also reasonably infer that Hoskins knew
    about the August 27, 2013, Taylor shooting in advance because
    of the photograph, taken hours before the shooting, showing
    4
    The Court of Appeal stated that the loaded revolver was
    recovered “in an area after chasing Hoskins.” (Ware, supra, 52
    Cal.App.5th at p. 942.) This appears to be an error; the record
    does not show Hoskins was chased, and the loaded revolver was
    found in the backyard of a house of which Hoskins was standing
    in front. The apparent misstatement of the evidence does not,
    however, affect our analysis of the issue presented.
    11
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    Hoskins and a fellow 5/9 Brim member “ ‘flipping off’ ” a rival
    gang about one mile away from where Taylor was later shot.5
    (Ibid.)
    Finally, the Court of Appeal concluded that because of
    “Hoskins’s relationship to the coconspirators,” a reasonable jury
    could combine evidence of Hoskins’s social media activity and
    proximity to firearms with his alleged coconspirators’ conduct to
    infer that Hoskins “knew of the conspiracy and had the
    deliberate, knowing, and specific intent to join” it. (Ware, supra,
    52 Cal.App.5th at p. 942.)       According to the court, this
    conclusion was bolstered by the jury’s finding of gang
    enhancements against all defendants, which “necessarily”
    meant the jury “found the evidence of interdependence among
    the participants in the crimes to be persuasive.” (Ibid.)
    The Court of Appeal’s opinion was initially unpublished.
    After filing, the Attorney General requested partial
    publication.6 The Attorney General argued that the conspiracy
    portion of the opinion merited publication because it “applies an
    existing rule of law to a set of facts significantly different from
    those stated in published opinions.” Specifically, the opinion
    “upholds the conspiracy to commit murder convictions . . . based
    5
    The Court of Appeal wrote that Hoskins and Paris were
    “ ‘flipping off’ NC,” but the evidence suggests they were trying
    to insult WCC, a different rival Crips gang, instead. (Ware,
    supra, 52 Cal.App.5th at p. 942.)         Again, the apparent
    misstatement is not material to our analysis of the issue
    presented.
    6
    In a separate letter, the San Diego District Attorney’s
    Office sought, and the Court of Appeal granted, publication of
    the portion of the opinion discussing the withdrawal of
    Hoskins’s attorney.
    12
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    on the broad context of forming an agreement amongst the gang
    members to kill rival gang members, without any agreement as
    to specific time, person or place that any killing would take
    place.” (Citing Cal. Rules of Court, rule 8.1105(c)(2), (3).)7
    Because there were no published opinions upholding a
    conspiracy like the one charged here, publication would “assist
    prosecutors in prosecuting gang members for conspiracy to
    commit murder based on forming a tacit general agreement to
    kill rival gang members.” The Court of Appeal granted the
    partial publication request.
    We granted Hoskins’s petition for review to address the
    nature of the evidence necessary to establish participation in the
    charged murder conspiracy.
    II.
    Conspiracy “ ‘is an inchoate offense, the essence of which
    is an agreement to commit an unlawful act.’ ” (People v. Johnson
    (2013) 
    57 Cal.4th 250
    , 258 (Johnson).) This crime has four
    elements: (1) the existence of an agreement between at least
    two persons; (2) the specific intent to agree to commit an offense;
    (3) the specific intent to commit the offense that is the object of
    the agreement; and (4) an overt act in furtherance of the
    conspiracy, which may be committed by any conspirator. (Pen.
    Code, § 182, subd. (a)(1); see, e.g., People v. Morante (1999) 
    20 Cal.4th 403
    , 416.)
    The first element, concerning the existence of an
    agreement, “is the crux of criminal conspiracy.”        (People v.
    7
    The Attorney General also sought, and the Court of Appeal
    granted, publication of the opinion section discussing First
    Amendment challenges to the use of social media evidence at
    trial.
    13
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    Homick (2012) 
    55 Cal.4th 816
    , 870.) As the Attorney General
    acknowledged in his publication request, this case is unusual in
    that the alleged object of the conspiracy is nonspecific: The
    charged conspiracy instead arises in “the broad context of
    forming an agreement amongst the gang members to kill rival
    gang members, without any agreement as to specific time,
    person or place that any killing would take place.”
    In this appeal, Hoskins does not dispute that the
    prosecution has adequately proved the first element of
    conspiracy, the existence of an agreement. Nor does he
    challenge the adequacy of the prosecution’s showing as to the
    final element, an overt act in furtherance of the conspiracy. To
    satisfy this particular element, a jury need only find that any
    member of the conspiracy committed a single overt act, whether
    criminal or not. (People v. Russo (2001) 
    25 Cal.4th 1124
    , 1135;
    accord, People v. Smith (2014) 
    60 Cal.4th 603
    , 616.) Here, one
    of Hoskins’s codefendants was convicted at trial of an attempted
    murder in furtherance of the conspiracy. Even if the prosecution
    had presented no evidence of any other overt act, the attempted
    murder conviction of an alleged coconspirator in furtherance of
    the conspiracy is sufficient to show the overt act element has
    been satisfied.
    Hoskins’s challenge instead focuses on the nature of the
    evidence necessary to connect any individual gang member to a
    nonspecific, long-running conspiracy of the sort alleged here.
    More specifically, he contests the prosecution’s showing
    regarding the two mental elements of conspiracy, which are the
    elements that establish an alleged conspirator’s participation in,
    and liability for, the charged unlawful agreement.
    14
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    A.
    The mental state elements of conspiracy require the
    prosecution to demonstrate the defendant had the specific intent
    both to agree to the conspiracy and to commit the object offense.
    (People v. Horn (1974) 
    12 Cal.3d 290
    , 296; People v. Jurado
    (2006) 
    38 Cal.4th 72
    , 123.) The two elements are distinct, but
    closely related. In some cases, it may be useful to distinguish
    between the two elements, especially when evidence of one is
    direct and the other is circumstantial. (See, e.g., People v. Marsh
    (1962) 
    58 Cal.2d 732
    , 742–744 [focusing on intent to commit a
    crime where there was clear evidence of intent to agree]; People
    v. Beck and Cruz (2019) 
    8 Cal.5th 548
    , 629 [focusing on intent
    to agree where there was clear evidence of intent to commit a
    crime].) But in many cases, proof of the two specific intent
    elements will overlap. (See, e.g., Harno, Intent in Criminal
    Conspiracy (1941) 89 U.Pa. L.Rev. 624, 631 [“[The two types of
    intent necessary for conspiracy] always shade into each other
    and often there is no practical purpose served in distinguishing
    them”].) Together, these two specific intent elements play a
    critical role in a conspiracy prosecution: Proof of these elements
    is what separates a coconspirator from a mere bystander to the
    crime.
    Here, where we consider these elements in the context of
    a charged conspiracy stemming from a gang rivalry, the proof
    necessary to differentiate a coconspirator from a bystander
    takes on particular significance. Decades ago, in Scales v.
    United States (1961) 
    367 U.S. 203
    , the United States Supreme
    Court held that the First Amendment forbids punishing a
    person merely for associating with others — even as part of a
    group premised on a violent aim. Because the law will not
    recognize a rule of guilt by association, we insist on proof of a
    15
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    defendant’s knowledge of, and specific intent to further, the
    group’s unlawful ends. (Scales, at p. 229; see, e.g., Elfbrandt v.
    Russell (1966) 
    384 U.S. 11
    , 19 [“A law which applies to
    membership without the ‘specific intent’ to further the illegal
    aims of the organization . . . rests on the doctrine of ‘guilt by
    association[,]’ which has no place here”]; Holder v.
    Humanitarian Law Project (2010) 
    561 U.S. 1
    , 18 [noting that
    “mere membership” in, or association with, an organization that
    advocates terrorism cannot itself be criminalized].)
    This basic principle is reflected in California’s extensive
    statutory regime targeting gang activity, as well as in judicial
    decisions interpreting and applying that law. (Pen. Code,
    § 186.20 et seq.; see, e.g., People v. Renteria (2022) 
    13 Cal.5th 951
     (Renteria).) California statutes impose substantial criminal
    penalties — ranging from additional terms of years to
    indeterminate life terms of imprisonment — on gang members
    who commit crimes in concert with other members, or for the
    benefit of the gang, with the specific intent to promote, further,
    or assist criminal activity. (Pen. Code, § 182.5 [offense of gang
    conspiracy]; id., § 186.22, subds. (a) [offense of active gang
    participation], (b)(1) [sentence enhancements for gang-related
    felonies], (b)(4) [alternative penalties for certain gang-related
    felonies].) In enacting the law, the Legislature deliberately
    “sought to avoid punishing mere gang membership.” (People v.
    Rodriguez (2012) 
    55 Cal.4th 1125
    , 1134 (Rodriguez).) Thus,
    under the gang statutes, “[m]ere active and knowing
    participation in a criminal street gang is not a crime.” (Id. at
    p. 1130; see People v. Mesa (2012) 
    54 Cal.4th 191
    , 196; People v.
    Albillar (2010) 
    51 Cal.4th 47
    , 57–58; People v. Castenada (2000)
    
    23 Cal.4th 743
    , 747–752; People v. Loeun (1997) 
    17 Cal.4th 1
    ,
    11.) For all the same reasons, in a traditional conspiracy
    16
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    prosecution broadly targeting gang rivalry, our review of the
    evidence must take care to distinguish between mere evidence
    of gang membership, on the one hand, and participation in the
    charged conspiracy, on the other.
    Caution is likewise warranted because of the unusual
    nature of the charged conspiracy in this case. The type and
    volume of evidence necessary to establish the existence of a
    broad, nonspecific gang-related conspiracy of the sort alleged
    here poses challenges to a factfinder attempting to distinguish
    the guilt of one defendant from that of another. In any
    conspiracy prosecution, “the accused often is confronted with a
    hodgepodge of acts and statements by others which he may
    never have authorized or intended or even known about, but
    which help to persuade the jury of [the] existence of the
    conspiracy itself.” (Krulewitch v. United States (1949) 
    336 U.S. 440
    , 453 (conc. opn. of Jackson, J.).) This feature of conspiracy
    prosecutions raises particular concerns in the context of a
    prosecution involving a “single massive conspiracy . . . . [¶] . . .
    The risk is that a jury will be so overwhelmed with evidence of
    wrongdoing . . . that it will fail to differentiate among particular
    defendants.” (U.S. v. Evans (10th Cir. 1992) 
    970 F.2d 663
    , 674.)
    The risk of confusion makes it particularly critical for courts to
    carefully distinguish between evidence of mere membership in
    a gang embroiled in a violent rivalry and evidence sufficient to
    support a conviction for conspiracy to commit murder.
    Several well-established principles of conspiracy law
    guide us in this task. To establish the requisite specific intent
    connecting an individual defendant to the charged conspiracy,
    the prosecution must show that the defendant intended to play
    some part in achieving the conspirator’s unlawful ends. Put
    differently, “[t]here must be something more than ‘[m]ere
    17
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    knowledge, approval of or acquiescence in the object or the
    purpose of the conspiracy.’ ” (U.S. v. Cianchetti (2d Cir. 1963)
    
    315 F.2d 584
    , 588, quoting Cleaver v. U.S. (10th Cir. 1956) 
    238 F.2d 766
    , 771; see Michael R. v. Jeffrey B. (1984) 
    158 Cal.App.3d 1059
    , 1069; see also Direct Sales Co. v. U.S. (1943) 
    319 U.S. 703
    ,
    711 [knowledge of a conspiracy is necessary, but not sufficient,
    to show that a person “intends to further, promote and cooperate
    in it”].) A cheerleader, no matter how enthusiastic, is not a
    coconspirator unless the prosecution can prove the cheering was
    intended to play some role in achieving the object offense.
    Likewise, a member of a group may receive some benefit from
    others’ misdeeds, but without more, a mere beneficiary is not a
    coconspirator.    Unlike a Penal Code section 182.5 gang
    conspiracy charge, in which knowingly benefiting from the
    conspiracy is a basis for liability, a Penal Code section 182
    traditional conspiracy requires the prosecution to demonstrate
    that the individual defendant intended to play a role in the
    object offense, not merely profit from it after the fact. (See
    Johnson, supra, 57 Cal.4th at p. 262.)
    While it may be useful to show the precise role the
    defendant intended to play in achieving the object of the
    conspiracy, the prosecution is not required to establish precisely
    how the defendant intended to achieve the ends of the
    conspiracy or that the defendant’s chosen means were effective
    in achieving those ends. Nor, certainly, must the prosecution
    establish the intent to participate in every act necessary to
    complete the object offense. (See Salinas v. United States (1997)
    
    522 U.S. 52
    , 63 [“A conspiracy may exist even if a conspirator
    does not agree to commit or facilitate each and every part of the
    substantive offense”].) But ultimately, to connect any individual
    to the charged conspiracy, the prosecution must at least
    18
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    establish that the individual specifically intended to agree to
    commit the criminal offense and to play at least some role in
    achieving it. (See 
    id.
     at pp. 63–64.)
    B.
    With these settled principles in mind, we turn to Hoskins’s
    evidentiary challenge for his murder conspiracy conviction.
    Although murder liability is divided into different degrees and
    can rest on different theories (see Pen. Code, §§ 187, 189),
    conspiracy to commit murder can only take a single form: It
    “requires a finding of unlawful intent to kill, i.e., express malice”
    (People v. Cortez (1998) 
    18 Cal.4th 1223
    , 1228) and “is
    necessarily conspiracy to commit premeditated and deliberated
    first degree murder” (id. at p. 1237). The question before us,
    then, is whether sufficient evidence supports the finding that
    Hoskins had the specific intent to agree to kill and the specific
    intent to commit killings, whether personally or by playing a
    role in killings carried out by others.
    To answer the question, we must “ ‘review the entire
    record in the light most favorable to the judgment,’ ” and then
    determine whether it contains “ ‘evidence that is reasonable,
    credible, and of solid value’ ” such that a reasonable jury could
    have found the defendant guilty beyond a reasonable doubt.
    (Renteria, supra, 13 Cal.5th at p. 970; see Jackson v. Virginia
    (1979) 
    443 U.S. 307
    , 319; People v. Johnson (1980) 
    26 Cal.3d 557
    , 578.)    As we have recently explained, “sufficiency
    determinations necessarily take account of the ‘standard of
    proof that applied before the trial court.’ ” (Renteria, at p. 970,
    quoting Conservatorship of O.B. (2020) 
    9 Cal.5th 989
    , 1008.)
    “[T]hat is why in criminal cases we must ensure the record
    19
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    demonstrates substantial evidence to establish guilt beyond a
    reasonable doubt.” (Renteria, at p. 970.)
    We must “ ‘presume in support of the judgment the
    existence of every fact the jury could reasonably have deduced
    from the evidence . . . “for it is the exclusive province of the trial
    judge or jury to determine the credibility of a witness and the
    truth or falsity of the facts upon which a determination
    depends.” ’ ” (People v. Manibusan (2013) 
    58 Cal.4th 40
    , 87,
    quoting People v. Zamudio (2008) 
    43 Cal.4th 327
    , 357, citation
    omitted.) But we cannot, however, venture beyond the evidence
    presented at trial, and may consider only those inferences that
    are reasonably supported by the record. “ ‘[A] reasonable
    inference . . . “may not be based on suspicion alone, or on
    imagination, speculation, supposition, surmise, conjecture, or
    guess work.” ’ ” (People v. Davis (2013) 
    57 Cal.4th 353
    , 360,
    quoting People v. Morris (1988) 
    46 Cal.3d 1
    , 21.) It “must
    logically flow from other facts established in the action,” and it
    cannot be “based entirely on the suspicions of the officers
    involved in the case and the conjecture of the prosecution.”
    (People v. Austin (1994) 
    23 Cal.App.4th 1596
    , 1604.)
    Here, the evidence showed that Hoskins (1) was an active
    member of the 5/9 Brim gang; (2) had access to guns at some
    point during the charged conspiracy; (3) tried to help Hurst after
    Hurst’s arrest for the August 27, 2013, Byreese Taylor shooting;
    and (4) knew of and voiced his support on social media for
    violence against rival gang members. Considering the evidence
    as a whole, we conclude that no reasonable jury could have
    found beyond a reasonable doubt that Hoskins had the requisite
    intent to participate in a conspiracy to commit murder. Though
    we discuss each category of evidence in turn, we stress that our
    20
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    conclusion is based on our assessment of the evidence in its
    entirety.
    We begin with the evidence of Hoskins’s ties to the 5/9
    Brim gang and alleged participants in the charged conspiracy.
    The evidence showed that Hoskins was a member of the
    Southside Brim Gang Facebook group, friends on Facebook with
    Brim gang members, and regularly communicated with Brim
    members and affiliates. Hoskins consistently affirmed his
    affiliation with the 5/9 Brim gang and professed his support for
    the gang online, and the jury saw numerous photos of Hoskins
    displaying Brim gang signs and associating with fellow Brim
    members, including alleged coconspirators, as well as posts
    describing his life in a gang. The evidence amply supports the
    allegation that Hoskins was an active Brim member during the
    alleged conspiracy, and Hoskins does not dispute this allegation.
    It is, however, a separate question whether Hoskins was a
    member of the charged conspiracy.
    “[C]ommon gang membership may be part of
    circumstantial evidence supporting the inference of a
    conspiracy.” (People v. Superior Court (Quinteros) (1993) 
    13 Cal.App.4th 12
    , 20; see People v. Frausto (1982) 
    135 Cal.App.3d 129
    , 140–141 [describing instances where proof of gang
    membership tended to demonstrate motive for a crime or
    participation in a conspiracy]; U.S. v. Garcia (9th Cir. 1998) 
    151 F.3d 1243
    , 1247 [“[W]hen evidence establishes that a particular
    gang has a specific illegal objective . . . evidence of gang
    membership may help to link gang members to that objective”].)
    But proof of common membership alone is not sufficient to
    establish participation in a criminal conspiracy. (See Rodriguez,
    supra, 55 Cal.4th at p. 1134.) The effect of such a rule would be
    to criminalize mere association with gang members, which the
    21
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    law forbids. (See ibid.; Quinteros, at p. 20 [“[M]ere association
    does not prove a criminal conspiracy”]; cf. U.S. v. Herrera-
    Gonzalez (9th Cir. 2001) 
    263 F.3d 1092
    , 1095 [stating that it is
    “not a crime to be acquainted with criminals”].)
    The Attorney General contends that Hoskins was “not just
    a gang member — he was a part of the gang’s subset responsible
    for killing rival and perceived rival gang members,” the Hit
    Squad. The Attorney General suggests that a reasonable jury
    could have inferred that such membership reflects an intent to
    join the conspiracy and to commit murder. We are not
    persuaded.      First, contrary to the Attorney General’s
    characterization, the record does not show that the Hit Squad
    was a “kill squad” whose “mission was to kill Crips.” The
    Attorney General points to trial evidence that many Hit Squad
    members committed crimes and that Tiny Hit Squad had more
    shooters and “k’s” than Hound Unit. But just because one group
    has more shooters and “kills” than another does not establish
    that only shooters and killers were allowed in the first group, or
    that its very purpose was to kill. One police officer, called to
    testify about his investigation into a shooting undertaken by 5/9
    Brim members not on trial, did refer in passing to Tiny Hit
    Squad as “essentially [an] assassination crew within the 5/9
    Brim gang.” But the officer offered no evidentiary support for
    that assertion, the Attorney General does not discuss this
    evidence on appeal, and the record supplies no support on its
    own. Without more evidence about the internal workings of the
    Hit Squad or its requirements for membership, evidence that
    Hoskins was part of the Hit Squad — like evidence that he was
    part of the 5/9 Brim gang in general — shows only that Hoskins
    associated with people involved in various violent criminal
    22
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    activities, and not that he held any specific intent to join them
    in those activities.
    Second, and relatedly, the Attorney General identifies no
    evidence that Hit Squad members needed to follow any specific
    set of rules or norms, or have any special qualifications or
    undergo any particular initiation rite (such as committing a
    particular crime), as a condition of membership. Though
    evidence of rules and norms can be relevant in assessing an
    individual’s participation in a charged conspiracy (see U.S. v.
    Bingham (9th Cir. 2011) 
    653 F.3d 983
    , 998 [describing strict
    gang rules enforced via formalized hierarchy]; People v. Kopp
    (2019) 
    38 Cal.App.5th 47
    , 75 [describing gang’s rules about
    cooperating with law enforcement]), there was no evidence of
    that sort here. The limited evidence on this subject at trial
    instead showed that many members of the Hit Squad were
    relatives, and suggested that the Hit Squad “subset” was, at
    least in part, a generational grouping within the gang. Nor was
    there evidence tending to show that the choice to become a 5/9
    Brim gang member in general was necessarily also a choice to
    participate in a long-running, nonspecific conspiracy to commit
    murder. It is undisputed that the 5/9 Brim gang had an active
    and violent rivalry with the WCC and NC gangs during the
    period of the alleged conspiracy. It is also undisputed that Brim
    members, like gang members generally, were expected to
    support the goals of the gang, including by backing each other
    up in fights. But a “general agreement, implicit or explicit, to
    support one another in gang fights does not provide substantial
    proof of the specific agreement required for a conviction of
    conspiracy to commit assault,” much less conspiracy to commit
    murder. (U.S. v. Garcia, 
    supra,
     151 F.3d at p. 1244.) Again,
    without more specific evidence about the requirements of Hit
    23
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    Squad or Brim membership, we conclude that no reasonable
    jury could have inferred that membership entailed an
    agreement by all of its members, including Hoskins, to kill
    rivals.
    The Attorney General repeatedly describes Hoskins as not
    merely a member of the gang, but an “active leader.” Again, the
    record does not support this characterization.         The only
    indication Hoskins had achieved some elevated rank was
    evidence that another 5/9 Brim member had adopted Hoskins’s
    gang moniker as his own; that member went by “Little Bick
    Nick,” a reference to Hoskins’s nickname, “Bick Nick.” This
    evidence, however, does not reasonably support an inference of
    Hoskins’s leadership or “high-level” status within the Brims.
    Indeed, the prosecution’s gang expert testified only that this
    indicated Hoskins was “working towards” a more senior position
    in the gang — not that he had necessarily achieved it. And even
    setting aside the minimal evidence regarding Hoskins’s
    purportedly elevated status, it is unclear what significance the
    jury reasonably could ascribe to such status. The prosecution’s
    gang expert testified that gang members must carry out
    “missions” to gain respect — and presumably to advance in the
    group — but the testimony appeared to be based on an
    impression of gangs generally, rather than the specific practice
    of the 5/9 Brims. In any event, the evidence did not show what
    sort of mission would be necessary to achieve whatever status
    Hoskins might have obtained within the gang. To the extent the
    prosecution might have sought to rely on an inference that a
    leader or person with elevated status must have been involved
    in gang decisionmaking, including the critical decision to
    murder unspecified members of rival gangs over an extended
    period of time, that inference is likewise unsupported by the
    24
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    evidence. The prosecution’s gang expert testified that the 5/9
    Brims did not have a fixed internal hierarchy, but rather only a
    “loose” structure. Even if Hoskins were considered a “high-
    level” member of the gang or enjoyed some type of elevated
    status, the record shed little light on what decisionmaking
    responsibilities might accompany that status — much less on
    the critical question of whether a “high-level” member was
    expected to join in any tacit agreement to kill rivals.
    The next category of evidence relates to Hoskins’s access
    and proximity to guns during the period of the alleged
    conspiracy. The Attorney General highlights two pieces of
    evidence: Hoskins’s February 2012 arrest with a gun concealed
    in a sock tucked into his pants, and his August 2012 encounter
    with police when a loaded revolver was found nearby. As
    Hoskins points out, neither gun was ever linked to any shooting.
    Nor was there any indication that Hoskins intended to use
    either weapon at the time he was arrested — let alone that he
    even knew about the revolver found after his August 2012
    encounter with police. Nonetheless, the Attorney General
    argues that this evidence indicates Hoskins was “ready and able
    to kill”: that he “either was, or could easily be armed, if the
    opportunity to shoot rival Crip gang members arose.” The
    evidence does not reasonably support such an inference.
    Though it may be reasonable to infer that Hoskins “could easily
    be armed” if the opportunity arose, it is not reasonable to infer
    that Hoskins therefore intended to commit first degree murder.
    Individuals — gang members included — frequently possess
    guns without harboring any intent to use the guns to commit
    premeditated, deliberate killings. Again, nothing in the record
    links Hoskins’s possession or proximity to the guns described
    above to any shootings or any broader criminal design to murder
    25
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    rivals. Without more, no reasonable jury could find that such
    evidence proved, beyond a reasonable doubt, that Hoskins
    intended to agree to participate in a conspiracy to murder rival
    gang members.
    We turn, then, to the evidence concerning the August 27,
    2013, shooting of Byreese Taylor. The Attorney General argues
    this evidence offers a concrete demonstration of Hoskins’s intent
    to play a part in the shooting of perceived rivals. But here again,
    the record does not support this conclusion: The prosecution
    presented no substantial evidence from which a reasonable jury
    could find that Hoskins intended to play any part in the shooting
    of Byreese Taylor.
    There was no substantial evidence that Hoskins was a
    direct participant in the shooting. The evidence showed only
    that Hoskins and Hurst — who was arrested for and convicted
    of the Taylor shooting — were longtime friends, and that
    Hoskins had been in the passenger seat of Hurst’s vehicle at
    some unspecified point in the past. The Court of Appeal in this
    case reasoned, and the Attorney General now argues, that a jury
    could have reasonably inferred Hoskins’s specific intent based
    on a photograph, taken on the morning of the shooting and
    posted later that day, showing Hoskins and another 5/9 Brim
    member standing in WCC territory and making gang signs.
    (Ware, supra, 52 Cal.App.5th at p. 942.) The Court of Appeal
    considered it reasonable to infer from the photograph that
    Hoskins “knew of the shooting set to occur that evening.” (Ibid.)
    The Attorney General, for his part, argues the photograph is
    probative of Hoskins’s intent because it was meant to lure
    victims for the upcoming shooting. As the Attorney General
    interprets the photograph, Hoskins and his alleged
    coconspirator were trying to show that they were “not afraid to
    26
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    go into their rival gang members’ territory” and “call[] out to
    rival Crips to come defend their territory and give the Hit Squad
    members an opportunity to shoot them.”
    The photograph in question could not reasonably have
    supported such an inference. It was taken seven hours before
    the shooting and in a location more than a mile away. Nothing
    about the photograph tends to establish that Hoskins or his
    alleged coconspirator was aware of the shooting in advance.
    And the Attorney General’s argument about the probative value
    of the photograph is highly speculative, requiring a number of
    inferential leaps — starting from the gang expert’s
    acknowledgement that “disrespect often require[s] retaliation”
    to an alleged plot to lure rivals, using social media, to a place
    where they would be murdered — to reach the conclusion that
    the photograph was part of a conspiracy to murder rivals by
    leading them into an ambush. The prosecution’s gang expert
    did not testify, based on his experience and expertise, that a
    photograph of this sort might play the role of bait. As a result,
    the jury would have had no substantial basis to conclude the
    photograph was intended to lure rival gang members to a
    location where they would be killed.
    Even if the prosecution had shown that posting the
    photograph constituted more than mere posturing, and was
    instead calculated to provoke a prompt in-person response, the
    prosecution also failed to introduce evidence sufficient to
    demonstrate beyond a reasonable doubt that the photograph
    was intended to lead to a deadly ambush, as opposed to any
    other form of confrontation. Nor does the theory seem plausible
    in light of the evidence of how the Taylor shooting in fact
    occurred. The evidence shows that on August 27, 2013, 5/9 Brim
    members were not waiting to ambush rival gang members after
    27
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    luring them to a location where they would be murdered.
    Instead, Hurst and others drove into a different part of rival
    territory searching for someone to shoot, and when no one
    clearly announced themselves as a rival (let alone sought to
    defend their territory), they accidentally shot a nonrival. The
    fact that no rival gang member was actually lured into a fight to
    defend the gang’s territory on August 27 tends to undermine the
    Attorney General’s argument that any such inference could
    reasonably be drawn from the photograph. And indeed, despite
    the considerable volume of evidence introduced at trial about
    the activities of Brim members over the two-year period of the
    charged conspiracy, the prosecution identifies no other instance
    where Brims employed such a strategy.
    The evidence of Hoskins’s role after the August 27
    shooting does not alter this conclusion. While Hoskins engaged
    in extensive online conversations with others about the shooting
    and Hurst’s arrest, none of those conversations indicated
    Hoskins knew of the shooting before it happened or played any
    role in the actual event. To be sure, the evidence showed that
    Hoskins collaborated with Hurst’s girlfriend to pressure Taylor
    not to testify against Hurst, and his messages to Taylor were
    full of implicit threats. But as a whole, the conversation
    demonstrates only that Hoskins was worried about his
    childhood friend and was planning to share paperwork
    suggesting that Taylor was “snitching.” The prosecution never
    presented evidence that Hoskins or Hurst’s girlfriend entered
    into an agreement to kill Taylor. The Attorney General suggests
    that the alleged witness intimidation is relevant because it
    “showed that Hoskins was trying to get his coconspirator Hurst
    out of custody and back on the streets where he could continue
    his role in the ongoing conspiracy.” It would be reasonable for
    28
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    the jury to infer the truth of the first part of that sentence: that
    Hoskins was trying to help his childhood friend leave custody.
    But the inference that Hoskins’s efforts were in furtherance of a
    conspiracy to commit murder rests on mere speculation. There
    is no evidence that Hoskins so much as discussed his efforts with
    other gang members. And certainly nothing in Hoskins’s
    conversations concerning the shooting suggested the goal was to
    return Hurst to the streets specifically so he could murder rival
    gang members.
    We now turn to the final category of evidence presented
    against Hoskins: his social media posts. The posts offer ample
    evidence that Hoskins knew and approved of the alleged
    conspiracy’s goals. For example, in February 2013, Hoskins
    posted a photograph of himself making the “Crip killer” hand
    sign with the caption: “Spell it BicK NicK tell he really Bout his
    cK’s.” In January 2014, he posted: “Never BacK Down is the
    MuthafucKin motto!” And in May 2014, he posted: “Ganstas
    don’t flicK it with gigs they use em.” There was also evidence
    that Hoskins knew of and celebrated some shootings soon after
    they happened. For example, in April 2012, Hoskins posted:
    “Son was Born healthy. cKrossys got Hit, all I need is some Dro
    and my day is set lol #HappyEaster!” At trial, the prosecution’s
    gang expert reasonably suggested that this post referred to a
    shooting, committed by 5/9 Brim members, of a rival Crips
    member — the “cKrossy[]” — several days earlier. In another
    instance, Hoskins taunted a rival gang after one of their own
    was shot, writing in March 2014: “That’s some gay sHit not
    Gansta yall getBacK taggin in the set? That’s all yo DeadHomie
    worth? That’s why I kall yall cKraBs.”
    The Attorney General argues that Hoskins intended to
    encourage the war by “glorifying and endorsing” the violence on
    29
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    social media. The posts do demonstrate that Hoskins approved
    of the violence, and perhaps even perceived some reputational
    benefit to himself from the gang’s success in its ongoing conflict
    with rivals. But as we have noted, absent proof of intent to play
    some role in achieving the conspiracy’s unlawful goals, neither
    being a cheerleader nor passively accepting the benefits of
    others’ unlawful activities constitutes participation in a
    conspiracy. And the Attorney General fails to point to evidence
    showing that Hoskins intended the posts to facilitate murder.
    There is no evidence in any of Hoskins’s posts of a plan to
    participate in any of the shootings that constituted the object of
    the conspiracy, nor is there evidence that such posts were
    directed to any alleged coconspirators (or that, as a whole, his
    Facebook posts were consistently viewable by those outside of
    his Facebook friend network).
    The prosecution had asserted at trial that Hoskins’s social
    media posts were particularly probative of his intent to
    participate in the conspiracy because Hoskins’s posts
    celebrating gang violence provided a revealing “window” into his
    mind. As we consider the evidence on appeal, however, some
    caution is in order. Social media is not a bedside diary; it is a
    platform for expression aimed at a particular audience. (See,
    e.g., Packingham v. North Carolina (2017) 
    582 U.S. __
     [
    137 S.Ct. 1730
    , 1737] [“Social media allows users to gain access to
    information and communicate with one another about it on any
    subject that might come to mind”].) Like any other form of
    public expression, social media posting may include an element
    of performance. (Ibid. [analogizing social media websites to the
    “modern public square,” capable of “allow[ing] a person with an
    Internet connection to ‘become a town crier with a voice that
    resonates farther than it could from any soapbox’ ”].) At the
    30
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    same time, social media statements, like any other statement,
    may reflect the speaker’s state of mind, depending on their
    content and context. Whether a statement actually reflects the
    speaker’s views or simply involves an element of performance or
    bravado are, of course, questions of fact for a jury to decide.
    Here, in any event, the question is not simply whether
    Hoskins approved of the violence of others, but whether his
    statements, taken with the other evidence as a whole, were
    sufficient to show he intended to conspire with others to commit
    murder. On this score, the evidence falls short. Indeed, as the
    prosecution’s own gang expert acknowledged, there could be 5/9
    Brim members who “strictly” display “Ck” or post about “Crip
    killing” on social media without ever actually killing Crips.
    Hoskins’s general celebration of gang violence on social media —
    with no evidence that he ever intended to play a role in
    committing any act of violence — is not enough to establish his
    participation in a conspiracy to commit murder.
    In sum, after considering the record in its entirety, we
    conclude that the evidence presented at trial is insufficient to
    show that Hoskins had the requisite intent to participate in a
    conspiracy to kill rival gang members. The evidence showed
    that Hoskins was an active member of a gang whose other
    members committed acts of violence, that he celebrated those
    acts of violence, and that he had access to weapons that he could
    use in furtherance of those acts, if he so chose. The evidence
    unquestionably establishes Hoskins’s membership in a group
    with violent aims and his association with individuals who
    commit violent crimes. But it is not sufficient to support a
    finding that Hoskins specifically intended to enter an agreement
    to commit murder, or that he specifically intended to commit
    murder, either personally or through others.
    31
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    In reaching a contrary conclusion, the Court of Appeal
    relied in the last instance on the fact that “the jury necessarily
    found the evidence of interdependence among the participants
    in the crimes to be persuasive, having found true all of the gang
    enhancements against all appellants.”          (Ware, supra, 52
    Cal.App.5th at p. 942.) We draw a different lesson. If anything,
    the likelihood the jury relied on evidence of interdependence
    between members of the 5/9 Brim gang underscores the risks of
    confusing gang membership with participation in a conspiracy
    to commit murder in a long-running, large-scale, nonspecific
    conspiracy like the one charged here. If the prosecution had
    charged Hoskins with conspiracy to commit murder in
    connection with any particular incident allegedly part of this
    conspiracy, no reasonable jury could have found Hoskins guilty
    based on the evidence presented at trial. At most, the
    prosecution would be able to rely on his membership in the gang,
    association with violent members, general glorification of
    violence on social media, and isolated behavior that had a
    speculative link to any particular incident. But because the
    prosecution had alleged that Hoskins was part of a much
    broader conspiracy, it was permitted to introduce evidence
    connecting a number of disparate events across multiple years
    and tying Hoskins to two alleged coconspirators, both of whom
    were much more strongly implicated in particular acts of
    violence linked to the conspiracy. (See id. at pp. 940–941.) The
    risk of jury confusion makes it all the more vital for courts to
    carefully distinguish between evidence of mere membership in
    a gang embroiled in a violent rivalry, on the one hand, and
    evidence sufficient to support a conviction for conspiracy to
    commit murder, on the other.
    32
    PEOPLE v. WARE
    Opinion of the Court by Kruger, J.
    III.
    We reverse the judgment of the Court of Appeal and
    remand for further proceedings consistent with this opinion.
    KRUGER, J.
    We Concur:
    CANTIL-SAKAUYE, C. J.
    CORRIGAN, J.
    LIU, J.
    GROBAN, J.
    JENKINS, J.
    GUERRERO, J.
    33
    See next page for addresses and telephone numbers for counsel who
    argued in Supreme Court.
    Name of Opinion People v. Ware
    __________________________________________________________
    Procedural Posture (see XX below)
    Original Appeal
    Original Proceeding
    Review Granted (published) XX 
    52 Cal.App.5th 919
    Review Granted (unpublished)
    Rehearing Granted
    __________________________________________________________
    Opinion No. S263923
    Date Filed: December 1, 2022
    __________________________________________________________
    Court: Superior
    County: San Diego
    Judge: Leo Valentine, Jr.
    __________________________________________________________
    Counsel:
    Nancy Olsen, under appointment by the Supreme Court, for Defendant
    and Appellant Nicholas Hoskins.
    Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler
    and Lance E. Winters, Chief Assistant Attorneys General, Julie L.
    Garland, Assistant Attorney General, A. Natasha Cortina, Steve
    Oetting and Christine L. Bergman, Deputy Attorneys General, for
    Plaintiff and Respondent.
    Counsel who argued in Supreme Court (not intended for
    publication with opinion):
    Nancy Olsen
    Attorney at Law
    P.O. Box 231153
    Encinitas, CA 92023-1153
    (760) 753-5206
    Christine L. Bergman
    Deputy Attorney General
    600 West Broadway, Suite 1800
    San Diego, CA 92101
    (619) 738-9159