IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
December 14, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ISAIAH JERMAINE THOMPSON, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F00207)
The opinion of the court was delivered by: Butz , J.
P. v. Thompson CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Isaiah Jermaine Thompson guilty of being a felon in possession of a firearm, being a felon in possession of ammunition, and participation in a criminal street gang. (Pen. Code, §§ 12021, subd. (a)(1), 12316, subd. (b)(1), 186.22, subd. (a).)*fn1  The jury also found that defendant's possession of the firearm was committed for the benefit of, at the direction of, or in association with a criminal street gang (i.e., was "gang related"). (§ 186.22, subd. (b)(1).) The trial court sentenced defendant to an aggregate term of eight years in state prison.
On appeal, defendant contends the trial court committed prejudicial error in admitting evidence of numerous prior uncharged arrests. He also contends there was insufficient evidence to support the gang enhancement, and double jeopardy principles prevent its retrial. We agree with each of these contentions and shall reverse.
On January 8, 2008, police were surveilling defendant at an apartment complex in South Oak Park. They saw two men, Marcus Hawkins and Ernest Harris, approach the back of a Mercedes parked in the apartment parking lot. The men spoke for a moment and then Hawkins went back to his apartment. Seconds later, defendant walked up and he and Harris (a validated Oak Park Blood, Ridezilla gang member), got into the Mercedes. Harris got into the driver's seat and defendant got into the front passenger seat.
Three marked tactical police vehicles then pulled into the parking lot, parked behind the Mercedes, and performed a "felony vehicle stop"--the officers got out with guns drawn and repeatedly ordered defendant and Harris to raise their hands. Harris slowly complied with the order, although he later lowered his hands when he turned off the ignition and rolled up the window. Defendant began to put his hands into view, but then brought them towards his front waist/stomach area. Defendant was wearing a bulky jacket, which officers saw rise on his body. Defendant turned to the left for a second or two toward the rear of the car behind the front center console. Defendant then faced forward and put his hands into view. He had apparently been talking on his cell phone.
Once defendant and Harris were arrested, officers searched the Mercedes and found a loaded .45-caliber semiautomatic handgun on top of the "back center raised area." There were one or two gloves near the gun and an additional pair of gloves in the driver's seat area. Defendant had two cell phones in his possession. At least one of those phones contained gang-related photos, as did the phone confiscated from Harris. The images on defendant's cell phone were dated in December 2007.
The Ridezilla gang is one of various subsets, or cliques, of the Oak Park Bloods. Law enforcement has validated 247 Oak Park Blood members, and an additional 30 Ridezilla members. The Ridezilla subset has somewhat more structure that the otherwise very loosely structured African-American street gangs in the area, including the Oak Park Bloods, which lack leadership. The Ridezilla gang is known for committing violent crimes. Their primary activities include drug dealing, robberies, carjacking, gun possession, burglary, assaults with firearms, murder and attempted murder.
Defendant had been found in the presence of Ridezilla gang members in December 2002, September 2003, and June 2005. He also had thrown gang signs from inside a police car after he was detained for loitering back in November 2003. Law enforcement validated him as a Ridezilla gang member in June 2005 when he was in the apartment of Ricky Ware, another validated Ridezilla gang member. Defendant had a "Zilla" tattoo on his forearm and admitted to officers he was a Ridezilla gang member.
Defendant's nicknames or monikers include Maymay, Stax, Drastic Stax, and Toback. In March 2005, law enforcement confiscated a letter addressed to "Twin Shots," a "UZ Soulja" (soldier) from another gang member's house, which was signed by someone identifying himself as "UZ Stax, Godfather Zilla, The General." "UZ" stands for "Underworld Zilla," a nickname of the Ridezilla gang. A gang expert testified it would be dangerous for a "wannabe" gang member to refer to himself as a godfather or general.
The People also introduced evidence of a YouTube video entitled "STAXandQQ on YouTube." The date the video was made is unknown. The video depicts numerous individuals, including defendant and six additional individuals identified to be Oak Park Blood, FAB*fn2  and Ridezilla gang members, talking and "rapping." During the video, defendant raps, "I paid my homage, and take the honors, medallion on my neck, like a medal, I keep the .40 on me Homie riding through the ghetto. It's UZ, N--gah!"*fn3 
We set forth some additional evidence of the Ridezilla gang, and defendant's participation therein, in our discussion as necessary for resolution of the issues presented. The parties stipulated that defendant had been previously convicted of a felony.
I. Prior Uncharged Offenses
A. Evidence Admitted
On the People's motion, and over defendant's objection,*fn4  the trial court admitted the following evidence:
(1) On June 16, 2006, defendant was approached by officers who asked to speak to him. Defendant ignored them and attempted to lock himself in a vehicle. One of the officers placed him in a compliance hold but defendant broke free and fled. During the subsequent foot chase, defendant threw a loaded .45-caliber semiautomatic gun. He was ultimately convicted of being a felon in possession of a firearm.
(2) On September 11, 2005, officers received a report of shots fired and when they responded to the nightclub, they were directed to defendant by some citizens. Defendant ran but was eventually caught. Shell casings were located in the area where defendant was initially seen. Defendant claimed he ran because someone had shot at him. He was found in violation of his parole.
(3) On September 27, 2004, an officer attempted to pull defendant over for having expired registration tags. As the car came to a stop, defendant and his passenger ran off. Defendant was found hiding nearby. A .45-caliber handgun magazine loaded with four bullets was under the center console of the car. Defendant was found in violation of his parole.
(4) On October 17, 2003, officers contacted defendant and another individual, who were sitting in a car outside a bar. During the contact, defendant began to reach into his waistband. A subsequent search of his waistband area revealed a loaded .45-caliber handgun. Defendant was convicted of being a felon in possession of a firearm.
(5) On September 18, 2002, patrol officers saw defendant firing a handgun into the air. Defendant ran but was later found hiding under a car.
(6) On February 6, 1998, defendant was seen riding his bicycle without lights in the early morning hours. When officers activated their overhead lights, defendant threw a baggie containing what was later determined to be 16 individually wrapped pieces of rock cocaine. He was arrested and booked into county jail.
(7) On February 1, 1997, officers responded to a call of shots fired. When they asked to speak to the three minors who were present, including defendant, the minors all ran. One of the officers saw defendant reach into his waistband and throw a .38-caliber pistol. When defendant was caught, he was uncooperative and tried to bite an officer. While transporting defendant to jail, officers found live ammunition on defendant's person, which matched the gun that was recovered.
The trial court found the evidence listed above relevant to establish that defendant was "a busy and active member" of the Oak Park Bloods, Ridezilla gang.*fn5 
Defendant contends that the seven prior incidents of uncharged offenses were erroneously admitted. He contends that the evidence was irrelevant, as it had no bearing on his participation in gang activity and "served only to improperly prove bad character, a predisposition to criminality, and/or [his] conduct on a specific occasion." Accordingly, the evidence should have been excluded under Evidence Code section 352. We agree.
The trial court's decision to admit evidence that defendant committed uncharged crimes is reviewed for an abuse of discretion. (People v. Kipp (1998) 18 Cal.4th 349, 369 (Kipp).) Error in admitting character evidence is reviewed under the standard of People v. Watson (1956) 46 Cal.2d 818, whether there is a reasonable probability the result would have been more favorable to defendant if the evidence had not been admitted (People v. Malone (1988) 47 Cal.3d 1, 22).
Evidence Code section 1101 provides that evidence of specific instances of a person's conduct is inadmissible if offered to prove that person's conduct on a specified occasion. However, such evidence is admissible to prove some fact other than the person's disposition to commit a crime or other act. For example, such evidence is admissible to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . ." (Evid. Code, § 1101, subd. (b).)
In this case, the trial court admitted the evidence because of its tendency to prove defendant's participation in the Oak Park Blood, Ridezilla gang. The People continue to characterize the evidence as evidence of "gang-related acts" that are relevant to establish defendant's active participation in a gang. None of the seven incidents, however, were shown to be gang related. Instead, the evidence tended only to establish that defendant (1) repeatedly has been found to illegally possess a firearm; (2) often attempts to dispose of the firearm or elude officers; and (3) has a general criminal disposition. Thus, the only use for the evidence was impermissible and prejudicial, encouraging the jury to prejudge defendant on the basis of his prior acts. (People v. Zapien (1993) 4 Cal.4th 929, 958.) The evidence had no probative value for any permissible purpose, and it was most certainly outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. (See Kipp, supra, 18 Cal.4th at p. 371.)
Accordingly, we conclude it was error to admit this evidence at trial.
The People assert that any error in admitting the evidence was harmless because the evidence of defendant's guilt was overwhelming. They argue that the evidence that defendant, as opposed to Harris, possessed the gun and the ammunition was very clear. We cannot agree.
Who possessed the firearm, defendant or Harris, was the primary dispute. Defendant argued that Harris had placed the gun in the car without his knowledge. The jury was especially concerned about the concept of constructive possession, as it sought clarification on the concept in several separate notes to the trial judge during deliberations. Thus, it appears the jury may not have found the evidence that defendant actually possessed the firearm to be clear or overwhelming.
To make matters worse, not only was the evidence erroneously admitted, it was improperly argued to the jury. The prosecutor impermissibly argued that the prior similar crimes established that it was defendant, not Harris, who possessed the firearm: "But think about what you know about [defendant]: [¶] If you know anything about [defendant], you would know the following things about him when he comes into contact with law enforcement: [¶] He is strapped [i.e., armed], and he typically tries to get rid of the gun when he's contacted. You know that because out of the 14 contacts that we presented to you, 10 of them involved guns or shooting. Nine out of 10 of those involved [defendant] trying to get rid of a firearm. . . . [¶] . . . [¶] . . . He is still 70 percent of the time with a gun, trying to get rid of it, either on foot or in a struggle trying to close a door." When the prosecutor relies heavily on erroneously admitted evidence, it is more difficult to find the error harmless. (See People v. Memory (2010) 182 Cal.App.4th 835, 863; see also People v. Fabert (1982) 127 Cal.App.3d 604, 610.)
In sum, it is reasonably likely that the verdict was influenced by the other crimes evidence and would have been more favorable had this evidence not been admitted. (See People v. Felix (1993) 14 Cal.App.4th 997, 1007-1009.)
D. Additional Incidents and Evidence Code Section 352
The trial court also admitted, over defendant's objection, evidence of two additional incidents that defendant admits had probative value but argues should have been excluded pursuant to Evidence Code section 352 due to their cumulative and prejudicial nature.
The first incident involved a 2002 vehicle stop wherein defendant was in a vehicle with two other individuals, including an Oak Park Blood, Ridezilla member, and was arrested but not convicted for possession of marijuana for sale after the officers found marijuana and two loaded handguns in the car. The second incident involved a 2005 homicide that occurred when defendant and a group of Ridezilla members met to "do a retaliation" for the 2003 murder of a Valley Hi Piru gang member. Defendant drove the group to a Crip gang hangout and, wearing red rags over their faces, the group fired about 30 rounds from at least four different guns into the house. One of the Ridezilla gang members was shot and killed, and the gang members left his body on a sidewalk. The gang member who fired the deadly shot was convicted of murder with a gang enhancement.
Because we reverse defendant's convictions due to the erroneous admission of the other seven prior uncharged acts discussed above, the trial court may or may not have the occasion to consider the admissibility of these two additional incidents on retrial. Should the People seek admission of this evidence on retrial, the trial court should carefully consider whether one or both should be admitted and, if so, whether the 2005 gang shooting incident should be sanitized prior to admission.
While probative to establish defendant's knowledge that gang members have engaged in a pattern of gang activity, and as evidence of defendant's active membership in the Ridezilla gang, this evidence was also cumulative and prejudicial.*fn6  The People had at least three other predicate gang offenses available to them that they also presented to the jury. There were also several other incidents wherein defendant was shown to be in the presence of Ridezilla gang members and significant additional evidence of defendant's membership in the Ridezilla gang. Moreover, as the trial court noted, with respect to the 2005 gang shooting, there is "no doubt this evidence is prejudicial, in that it ties [defendant] to a homicide scene" for which defendant appears to have gone unpunished. (See People v. Harris (1998) 60 Cal.App.4th 727.)
Thus, should the People seek to introduce evidence of the 2002 vehicle stop and/or the 2005 gang shooting on retrial, the trial court should undertake carefully the weighing process of Evidence Code section 352.
II. Gang Enhancement
A. Sufficiency of the Evidence
Defendant also contends that there was insufficient evidence to support the gang enhancement which was appended to the firearm possession conviction. We consider this argument, despite our reversal of the underlying conviction for evidentiary error, because if the evidence of the enhancement allegation was insufficient, the People are barred by double jeopardy principles from retrying that allegation on remand.
Section 186.22, subdivision (b)(1) imposes an additional punishment when a defendant commits a gang-related felony. Here, the prosecution was required to show that defendant possessed the firearm with the specific intent to promote, further, or assist in any criminal conduct by gang members. (§ 186.22, subd. (b)(1); People v. Leon (2008) 161 Cal.App.4th 149, 162.) Defendant argues the prosecution failed to meet its burden. We agree.
In determining whether sufficient evidence supports a conviction or enhancement, we consider whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. We examine the record to determine whether it discloses substantial evidence--evidence that is reasonable, credible, and of solid value--sufficient to convince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt. This standard also applies to a claim of insufficiency of the evidence to support a gang enhancement. (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
The only evidence tending to support a finding that defendant possessed the firearm for the benefit of the Ridezilla gang was that defendant: (1) was a gang member; (2) was with another gang member; (3) was in a car parked in a neighborhood where their gang lived and frequented; and (4) was in a car in which police officers found a loaded gun. An expert testified that guns assist the Ridezilla gang activity and, without reaching a conclusion in this case, testified that, depending on the circumstances, some--but not all--possession of guns by gang members is related to gang activity. Without more, such evidence is insufficient to establish that the possession of the loaded firearm was committed "for the benefit of, at the direction of, or in association with" the Ridezilla gang. (§ 186.22, subd. (b)(1).)
The People rely on People v. Ochoa (2009) 179 Cal.App.4th 650 (Ochoa), People v. Morales (2003) 112 Cal.App.4th 1176 (Morales), and People v. Williams (2009) 170 Cal.App.4th 587 (Williams) to support their argument that there was sufficient evidence defendant acted in association with the Ridezilla gang in possessing the firearm. We note, however, that when reviewing sufficiency of the evidence, there is little value in comparing facts of the present case with facts in other cases. (People v. Rundle (2008) 43 Cal.4th 76, 137-138 ["Reviewing the sufficiency of evidence . . . necessarily calls for analysis of the unique facts and inferences present in each case, and therefore comparisons between cases are of little value."], disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421; People v. Thomas (1992) 2 Cal.4th 489, 516; cf. People v. Ault (2004) 33 Cal.4th 1250, 1267 [assessing prejudice].)
Ochoa does not support the People's position. Indeed, it supports a finding of insufficient evidence here. In Ochoa, the jury convicted the defendant of carjacking and found that he committed the act for the benefit of a gang. The evidence showed that the victim was sitting in a parked car when the defendant (a gang member) approached, pulled a shotgun out of his jacket, pointed it at the victim's face, told the victim to give him the vehicle, got into the vehicle, and then drove away. A gang expert opined the carjacking benefitted the gang by "providing general transportation to the gang's members, by enabling transportation of narcotics for sale by the gang, by enabling transportation to commit further crimes by the gang, by providing economic benefit to the gang by sale of the vehicle, by elevating [the] defendant's status within the gang, and by raising the gang's reputation in the community." (Ochoa, supra, 179 Cal.App.4th at p. 656.)
The appellate court found this evidence insufficient to support a gang enhancement. (Ochoa, supra, 179 Cal.App.4th at p. 665.) The court noted that the defendant did not call out a gang name, display gang signs, wear gang clothing, engage in gang graffiti while committing the instant offenses, later brag about or take credit for the crimes, commit the crimes with another gang member or in gang territory or the territory of any of its rivals, nor had the defendant been accompanied by a fellow gang member. Thus, while the expert testified that the carjacking could benefit the defendant's gang in a number of ways, he had no specific evidentiary support for making such inferences. Indeed, he admitted that no indication was present that the defendant had used the vehicle to transport other gang members. Further, no testimony established that the defendant used the vehicle to transport drugs or manifested any intention to do so. (Id. at pp. 662-663.) Thus, the court concluded the expert's testimony "was based solely on speculation" (id. at p. 663) and vacated the enhancement (id. at p. 665).
In a footnote, Ochoa criticized People v. Ramon (2009) 175 Cal.App.4th 843, 853, which would support a conclusion here of insufficient evidence. Ramon held the fact that the defendant was with another gang member in gang territory when he drove a stolen vehicle with an unregistered firearm inside did not justify imposition of a gang enhancement, as those facts were not sufficient to support the expert's testimony that crimes were committed for the benefit of gang. The Ochoa court commented that the fact that Ramon was in the company of another gang member should be sufficient evidence the crime was committed "in association with" the gang. (Ochoa, supra, 179 Cal.App.4th at p. 661, fn. 7.) Cases, however, are not authority for propositions not decided. (Santisas v. Goodin (1998) 17 Cal.4th 599, 620.)
In Morales, the defendant and two of his fellow gang members committed an armed robbery during which one of the three victims was killed. (Morales, supra, 112 Cal.App.4th at pp. 1179-1182.) Morales held that "specific intent to benefit the gang is not required. What is required is the 'specific intent to promote, further, or assist in any criminal conduct by gang members . . . .'" (Id. at p. 1198.) That element is satisfied if, in committing a felony, the defendant also intends to promote, further, or assist any criminal conduct by other gang members. Thus, where two or more gang members knowingly act together to perpetrate a felony, such as attempted robbery, each is guilty of that felony and each, by aiding and encouraging his cohort(s), can be found to have the intent to promote, further, or assist "'any criminal conduct by gang members.'" (Ibid.)
Morales expressly acknowledged that it was possible for even several gang members to commit a crime together, yet be on a "frolic and detour" unrelated to the gang. (Morales, supra, 112 Cal.App.4th at p. 1198.) But, there was no evidence in that case to support such a finding. Instead, the evidence was that the defendant intended to commit robberies, that he intended to commit them in association with Flores and Moreno, and that he knew that Flores and Moreno were members of his gang. Moreover, there was sufficient evidence that the defendant intended to aid and abet the robberies Flores and Moreno actually committed. Thus, it was fairly inferable that the defendant intended to assist criminal conduct by his fellow gang members. (Ibid.)
Here, unlike Morales, defendant was merely in the presence of Harris. It would be pure speculation to conclude that they were possessing the firearm together or that they were committing some other gang activity together for which the possession of the firearm would benefit.
In Williams, officers went to the defendant's house to arrest one of seven men inside. All but one of those men, including the defendant, were members of the Gateway Posse Crips gang, whose primary activities included drug sales, prostitution, and robberies. After the men finally exited the house, the officers searched it and found, inter alia, a loaded nine-millimeter handgun, ammunition, a drug pipe, and two digital scales in the defendant's bedroom. They also found a duffel bag that contained 11 baggies of methamphetamine (one containing 3.3 grams and each of the other 10 containing 0.5 grams) and a revolver with the word "Crip" etched on it in the garage. (Williams, supra, 170 Cal.App.4th at pp. 596-597, 600.)
The expert opined that drug dealing was one of the primary activities of that gang and that the drugs, guns, and ammunition found in the defendant's home were possessed for the benefit of the gang. He explained that selling the drugs would generate profits for the gang, and the guns and ammunition could be used both to protect the drugs, cash, and gang members and to retaliate when necessary. (Williams, supra, 170 Cal.App.4th at p. 625.) The appellate court found the evidence sufficient to support the gang enhancement allegations. In so concluding, the court noted that "'the jury could reasonably infer the requisite association from the very fact that [the] defendant committed the charged crimes in association with fellow gang members.'" (Ibid.)
We disagree with the People's assertion that Williams stands for the proposition that a jury can infer "association" sufficient to impose the gang enhancement from the mere fact that a defendant committed the charged crime in the company of fellow gang members. Drug sales were a primary criminal activity of Williams's gang and the drugs, guns, and ammunition found in Williams were all found together in the defendant's home, including a gun with the word "Crip" etched into it. Almost all of the men in the house with the defendant at the time the contraband was found were gang members and arrested for the same crimes. Thus, there was significantly more evidence that the defendant was committing the crimes for the benefit of his gang other than the mere fact that he was found in the company of fellow gang members.
The California Supreme Court's opinion in People v. Albillar (2010) 51 Cal.4th 47 does not change our conclusion. In Albillar, three gang members "came together as gang members to attack [sexually the victim] and, thus, that they committed these crimes in association with the gang." (Id. at p. 62.) The court acknowledged that "[n]ot every crime committed by gang members is related to a gang." (Id. at p. 60.) However, in Albillar the crimes were committed by three gang members, assisting each other and relying on each other's cooperation and loyalty to complete--and avoid responsibility for--the crimes. Furthermore, because the victim knew they were gang members, the crimes increased not only their individual reputations, but the reputation and intimidating nature of the gang in the community. These critical elements were established by specific evidence in the record and the gang expert relied on them to support his opinion. (Albillar, at pp. 61-65.) Thus, the crimes "were gang related in two ways: [T]hey were committed in association with the gang, and they were committed for the benefit of the gang." (Id. at p. 60.)
Here, however, no specific evidence showed that Harris and defendant "came together" to possess the firearm or were otherwise acting in concert so as to establish that the possession was gang related. Again, the facts established only that defendant was in the presence of Harris. Thus, the evidence that warranted imposition of the gang enhancement in Albillar is not present here. (See In re Daniel C. (2011) 195 Cal.App.4th 1350, 1359-1361.)
Finally, providing no analysis, the People cite People v. Garcia (2007) 153 Cal.App.4th 1499 (Garcia) for the proposition that they presented sufficient evidence that defendant possessed the firearm for the benefit of the Ridezilla gang. We need not decide whether we agree with Garcia on its facts because, assuming its conclusion was correct, the decision is distinguishable.
In Garcia, the defendant was stopped for a traffic violation and officers found an unregistered, loaded handgun in the fuse box on the driver's side of his truck. (Garcia, supra, 153 Cal.App.4th at pp. 1502-1503.) The defendant was a member of a gang that had only 15 to 20 members in a defined neighborhood. The gang did not have any allied gangs and all other gangs were active rivals. (Id. at p. 1503.) There was evidence that, not only was the defendant an active gang member who had knowledge of the inner workings of the gang, but he had been in the gang for many years and had committed enough street crimes to have gained respect within the gang. (Id. at p. 1504.) An expert testified that guns were "huge" within the gang, that if a gang member possessed a gun, all of the other gang members would know about it, and that the gang's status would benefit from a gang member's reputation for carrying a firearm. The guns were used to intimidate members of their own gang, as well as other gangs and nongang individuals. The expert explained, "'possession of the gun, it's power within the gang itself.'" (Id. at p. 1506.) The guns were a sign of violence and violence was used to gain respect, which is "'everything'" to a gang member. (Id. at p. 1503.) The expert believed that, based on these facts and others, including the defendant's gang-related criminal history, the defendant's possession of an unregistered and loaded handgun in his truck was for the benefit of his gang. (Id. at pp. 1504-1506.)
The facts in Garcia are not present in the instant case. The expert here did not provide such testimony about the role of guns in the Ridezilla gang. He testified that guns were used by Ridezilla gang members as tools to commit crimes and to intimidate non-Ridezilla individuals. Yet, here, there was no evidence defendant was about to commit a crime with the firearm or was heading out to intimidate non-Ridezilla individuals.*fn7 
The expert here admitted that not every gang member who possesses a firearm possesses it to benefit his gang; rather, it depends upon the totality of the circumstances, including the individual's history as an active gang member, his involvement in gang-related crimes, and his history with guns. But here, as we have previously concluded, out of the seven prior occasions during which defendant possessed a gun, only one was shown to be gang related and, therefore, admissible for jury consideration or relevant as indicated by the expert.*fn8  Thus, even utilizing the expert's measure for determining whether defendant possessed the gun for the benefit of the gang, there is almost no evidence to support such a conclusion. Furthermore, the expert did not opine that, in this case, defendant's gun possession was gang related.
Instead, the expert merely indicated that he would have used defendant's prior criminal and gang history as the "totality of the circumstances" in order to determine whether defendant's gun possession in this case was gang related. But "the record must provide some evidentiary support, other than merely the defendant's record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang." (People v. Martinez (2004) 116 Cal.App.4th 753, 762.) Here, based on the circumstances, it is wholly speculative why defendant may have been in possession of the firearm. He was not wearing gang colors, gang clothing, or other gang insignia. He was not uttering gang-related slurs or flashing gang signs. While defendant may be an active Ridezilla gang member, no evidence indicated that any other Ridezilla gang member or any rival gang member, even knew of defendant's possession or intent. No evidence indicated that, if others did know of his possession, that such knowledge benefitted the gang. It is speculative whether Harris even knew of defendant's possession or whether defendant was acting in association with Harris in his possession. Defendant was not committing any of the violent crimes involving a firearm for which the Ridezillas were known. Nor was there any evidence regarding defendant's destination (if any) or what he planned to do (if anything). Indeed, there was nothing except the fact he was in the presence of another gang member in their own neighborhood, and that gang members use guns to commit their gang-related crimes.*fn9  That is insufficient to support a finding that defendant possessed the firearm for the benefit of the gang.
B. Double Jeopardy
This leaves the issue of whether the prosecution may retry defendant on the gang enhancement. People v. Seel (2004) 34 Cal.4th 535 (Seel) reexamined precedent on the issue of whether principles of double jeopardy allowed retrial of a premeditation enhancement (former § 664, subd. (a)) after the enhancement had been vacated on appeal for evidentiary insufficiency. (Seel, supra, at p. 541.) The Supreme Court had earlier concluded that Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435], which as a matter of federal constitutional law found that a jury trial is required on all sentence enhancements that increase the penalty for a crime beyond the statutory maximum, also required courts to assess any prejudice from instructional error in connection with such enhancements under the federal constitutional standard of harmlessness beyond a reasonable doubt. (People v. Sengpadychith (2001) 26 Cal.4th 316, 326.)
Sengpadychith found that only two of the three alternative punishments in the gang enhancement statute increased the penalty for the underlying crime (those which enhanced the sentence for various determinate term felonies); the third, however, which simply increased the minimum prison term for indeterminate term felonies, did not increase the punishment for the underlying offense beyond the statutory maximum and therefore was subject to the ordinary state harmless error standard. (Sengpadychith, supra, 26 Cal.4th at p. 327.) Seel concluded that the same principle must apply in the context of double jeopardy: An enhancement exposing a defendant to a greater punishment for the underlying offense than the statutory maximum must be treated as an element of the offense, and therefore a finding of evidentiary insufficiency bars retrial. (Seel, supra, 34 Cal.4th at pp. 547-550.)
In supplemental briefing, the People cite People v. Lyons (1999) 72 Cal.App.4th 1224, 1228-1229 and People v. Beaver (2010) 186 Cal.App.4th 107, 126 to stand for the general proposition that once the underlying conviction is reversed, an attached enhancement ceases to exist. But double jeopardy principles were not at issue in Lyons or Beaver and therefore these cases are not instructive on the point.
Here, the gang enhancement is one that increases the punishment from a statutory maximum of three years (the upper term) to seven years (an additional four years added for the gang enhancement pursuant to section 186.22, subd. (b)(1)(A)). Consequently, because we determine there was insufficient evidence to support the enhancement, retrial of the enhancement is precluded by federal jeopardy principles. (Burks v. United States (1978) 437 U.S. 1, 16-19 [57 L.Ed.2d 1, 12-14]; Seel, supra, 34 Cal.4th at pp. 541, 550.)
The judgment is reversed. The criminal street gang enhancement (§ 186.22, subd. (b)(1)) shall not be retried.
I concur: ROBIE , Acting P. J.
Concurring and Dissenting Opinion of Duarte, J.
I concur fully in the majority's conclusion in Part I that the judgment must be reversed because the People were permitted to introduce prejudicial evidence regarding prior instances--lacking any evidentiary connection to the Ridezilla gang--in which defendant had possessed firearms.
I respectfully dissent from Part II, which concludes double jeopardy bars the People from retrying the gang enhancement. Although I agree that the record is murky, in my opinion, construing all of the evidence in the light most favorable to the verdict, the People adequately proved the gang enhancement.
In addition to the bare evidence of the charged offense, namely, that defendant was a felon who possessed a firearm, the People introduced evidence demonstrating: 1) defendant was himself a gang member; 2) defendant was a gang leader; 3) defendant was located in a car with another gang member and in his own gang territory at the time of his arrest; 4) defendant had previously bragged that he had earned his leadership possession, wore a gang medal of honor, and patrolled the gang's neighborhood while armed with handgun; 5) defendant had previously been found in a car with a gang member and two handguns; and 6) expert testimony that one primary activity of defendant's gang was firearm possession, and inferentially, that defendant's leadership possession and history meant defendant possessed firearms for gang purposes. In my view, as I explain post, this was sufficient.
In assessing the evidence, we must construe the facts and all reasonable inferences flowing therefrom in the light most favorable to the verdict, and may reverse only if "it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th 297, 331; see People v. Garcia (2007) 153 Cal.App.4th 1499, 1508 (Garcia).) Speculation does not suffice; substantial evidence "'"reasonably inspires confidence"' [citation], and is 'credible and of solid value.'" (People v. Raley (1992) 2 Cal.4th 870, 891.)
Our Supreme Court recently held that the gang enhancement "does not depend on membership in a gang[,]" but "applies when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang." (People v. Albillar (2010) 51 Cal.4th 47, 67-68 (Albillar).) Accordingly, "if substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members." (Albillar, supra, 51 Cal.4th at p. 68.)
Here, the majority correctly notes that the People failed to secure a direct answer from its gang expert to the most critical question; whether, based on a hypothetical closely tied to the facts of this case, defendant possessed the handgun for gang purposes. (Maj. opn., ante, at pp. 14, 22-24.) However, when examining the expert testimony in its entirety, this was the only reasonable interpretation of that testimony, as I explain immediately below.*fn10 
Defendant's monikers included "Stax" and "Drastic Stax." A letter found in the house of gang member Jamaul Broadbent was signed by "U-Z Stax, Godfather Zilla, The General[.]" "UZ" means "Underworld Zilla," an alternate name for the Ridezilla gang. The expert testified that no "wannabe" would falsely identify themselves to be head of the gang ("the godfather or the general") without "feel[ing] the heat of the Zilla clique[,]" which could be life threatening. From the evidence of his "Stax" moniker, the jury could rationally infer that defendant wrote that letter and therefore claimed to be a gang leader, and take defendant at his word and conclude he actually was a gang leader, based on the evidence that no mere "wannabe" would claim to be a Ridezilla leader.
The expert testified this fact "takes it [i.e., defendant's status] to kind of the next level[,]" because defendant's gang has more structure than other local street gangs. When asked a hypothetical about whether the gun in this case was possessed for gang purposes, the expert's reply in part was that one had to consider each case on its facts, but he also testified that, "Most of these Ridezilla gang members, including Mr. Thompson, has [sic] a well-documented history of possessing guns and using guns over and over again, and it goes back to their reputation and their ability to instill this fear and intimidation on the community and with other gang members. [¶] So that gun facilitates the crime." (Emphasis added.) He testified that not all gang members possess guns to benefit the gang, because some are young "wannabe gang members," and the "totality of the circumstances" had to be considered in each case, but indicated that defendant was not in this "wannabe" category.
Thus, although the expert did not directly testify defendant possessed the gun for gang purposes, a rational juror would understand the expert's point was that because defendant was a Ridezilla leader who had a "well-documented history" of using guns, defendant's possession of a gun would itself benefit the gang by instilling fear in the community and in other gang members, unlike gun possession by a hypothetical "wannabe."
Further, as the majority notes (maj. opn., ante, at p. 7, fn. 5), there was evidence that in 2003, defendant was found in a car with another Ridezilla member and two handguns. There was also evidence that in 2005, defendant was the driver in a drive-by shooting committed by the Ridezilla gang, in which his group fired some 30 rounds from four different guns.*fn11  (Maj. opn., ante, at p. 11.) The fact that defendant was implicated in at least one prior gang-related possession of a handgun and was the driver of a car in another gang-related drive-by shooting involving multiple guns meshes with the expert's testimony that a person's history must be considered in determining whether the handgun was possessed for gang purposes.
Also, defendant was in the company of another known Ridezilla member on this occasion, in the gang's neighborhood, and gun possession was a primary activity of the Ridezilla gang. While not dispositive, this is additional probative evidence on the question of defendant's intent regarding the handgun on this occasion.*fn12 
Further, in the YouTube video clip discounted by the majority, defendant brags that he carries a handgun for gang purposes, stating in part that he had paid his "homage" and therefore can "take the honors" and wear a medallion "like a medal, I keep the .40 on me Homie riding through the ghetto. It's UZ[.]" Again, the jury could rationally take defendant's statement at face value and conclude that defendant had earned his way into a leadership position in the gang and patrolled the gang's territory while armed because "It's UZ," namely, for the gang. In effect, defendant brags in the video that when he is riding "through the ghetto[,]" he is armed with a handgun and on patrol. Here, defendant was in a car in his gang's neighborhood with at least one other gang member, while armed with a handgun. The jury could rationally conclude that he was on patrol for the gang.
I do not agree that the undated nature of the video is significant. Defendant was clearly identified by two witnesses at trial as the speaker. Nor does the fact that defendant bragged about a .40-caliber handgun on the video, but here possessed a .45-caliber handgun, significantly weaken the impact of the evidence. As the jury was instructed in connection with the substantive offense of felon-in-possession, a convicted felon cannot legally obtain a firearm, therefore as a matter of common sense a felon wishing to carry one will carry whatever he or she can obtain illegally, and cannot be choosy. For example, as noted by the majority, in one prior instance, defendant was found with two nine-millimeter handguns. (Maj. opn., ante, at p. 7, fn. 5.)
Nor do I agree with the majority that the video "was not even considered significant by the expert." (Maj. opn., ante, at p. 24, fn. 9.) In fact, the expert was never asked whether he considered the video significant.*fn13  Further, the video was shown to the jury, admitted into evidence, and contains a statement by defendant the jury could rationally have construed as incriminatory. On appeal, we must draw the inferences in favor of the verdict, and conclude the jury believed defendant's incriminating boast.
Therefore, reading the expert's testimony in toto and in the light most favorable to the verdict, and adding to it the other evidence just described, I believe there was substantial evidence supporting the jury's conclusion that defendant possessed the handgun on this occasion for gang purposes, namely, to patrol the neighborhood as part of his position as a gang leader.
The jury convicted defendant of the gang enhancement, and that outcome was supported by substantial evidence. I would not bar a retrial.*fn14