People v. Prunty

What can be gleaned from the legislative history also sheds light on the Act's scope, and accords with our conclusion. Some organizational or associational connection, whether formal or informal, must exist among subsets of a “criminal street gang.” In setting forth its findings and declarations concerning the STEP Act, the Legislature identified “the organized nature of street gangs” as posing a unique threat to public safety. (§ 186.21.) The Legislature described this “organized nature,” and the accompanying “patterns of criminal gang activity,” as “the chief source of terror created by street gangs” that the Legislature sought to eradicate. (Ibid. ) These statements indicate that the Legislature found criminals acting in association—however loose—to pose a more serious threat to public safety than other criminals. The clear purpose of the Act is to target these criminal groups in particular. (People v. Albillar (2010) 51 Cal.4th 47, 55, 119 Cal.Rptr.3d 415, 244 P.3d 1062 (Albillar ) [“Crimes committed by gang members ... pose dangers to the public and difficulties for law enforcement not generally present when a crime is committed by someone with no gang affiliation”].) At the same time, the Legislature evidently wanted the STEP Act to apply to groups with looser associations than traditional criminal conspiracies. Criminal conspiracies require proof of various elements—such as a specific agreement and the commission of an overt act—that the STEP Act does not require. The Legislature apparently intended that the STEP Act would reach significantly beyond such traditional forms of organized criminal activity. This background suggests that we read the STEP Act as the Legislature's attempt to strike a reasonable balance in targeting criminal street gang activity: to sweep more broadly than traditional conspiracy law, but still to focus on the particular dangers stemming from informally organized criminal activity.

The most straightforward cases might involve subsets connected through formal ways, such as shared bylaws or organizational arrangements. Evidence could be presented, for instance, that such subsets are part of a loose approximation of a hierarchy. Even if the gang subsets do not have a formal relationship or interact with one another—indeed, even if they are unaware of one another's activities—the subsets may still be part of the same organization if they are controlled by the same locus or hub. For example, Norteño gang subsets may be treated as a single organization if each subset contains a “shot caller” who “answer[s] to a higher authority” in the Norteño chain of command. (Williams, supra, 167 Cal.App.4th at p. 988, 86 Cal.Rptr.3d 130 ; see also People v. Tran (2011) 51 Cal.4th 1040, 1044, 126 Cal.Rptr.3d 65, 253 P.3d 239.)

Subsets may also be linked together as a single “criminal street gang” if their independent activities benefit the same (presumably higher ranking) individual or group. An example would be various Norteño subset gangs that share a cut of drug sale proceeds with the same members of the Nuestra Familia prison gang. More indirect evidence may also show that distinct gang subsets are organizationally linked. For instance, proof that different Norteño subsets are governed by the same “bylaws” may suggest that they function—however informally—within a single hierarchical gang. (In re Jose P., supra, 106 Cal.App.4th at p. 463, 130 Cal.Rptr.2d 810.) Alternatively, evidence that two seemingly unrelated Norteño cliques routinely act to protect the same territory or “turf” could suggest that they are part of a larger association. Similarly, proof that several gang subsets conduct independent, but harmonious, criminal operations within a discrete geographical area may show that they are part of a single entity whose bosses have divided up a larger territory. (See People v. Robinson (2012) 208 Cal.App.4th 232, 239, 145 Cal.Rptr.3d 364 [describing testimony that “several Project Trojans gang subsets” conduct “independent narcotics sales operations” within a “13–block area of North Richmond”].)

In other situations, formal structure or hierarchy may not be present, but the facts may suggest the existence of behavior reflecting such a degree of collaboration, unity of purpose, and shared activity to support a fact finder's reasonable conclusion that a single organization, association, or group is present. One possibility in such situations is for prosecutors to show that members of the various subsets collaborate to accomplish shared goals. For instance, the evidence may show that members of different subsets have “work[ed] in concert to commit a crime,” (Ortega, supra, 145 Cal.App.4th at p. 1357, 52 Cal.Rptr.3d 535 ), or that members have strategized, formally or informally, to and it need not show frequent communication or a hierarchical relationship among the members who communicate. For instance, evidence that two Norteño subsets have professed or exhibited loyalty to one another would be sufficient to show that the two subsets collaborate or cooperate. ( In re Jose P., supra, 106 Cal.App.4th at p. 463, 130 Cal.Rptr.2d 810.) So too would evidence of fluid or shared membership among the subset or affiliate gangs, or evidence that a “liaison” works to coordinate relations between the groups. (Williams, supra, 167 Cal.App.4th at p. 988, 86 Cal.Rptr.3d 130.)

Even evidence of more informal associations, such as proof that members of two gang subsets “hang out together” and “back up each other,” can help demonstrate that the subsets' members have exchanged strategic information or otherwise taken part in the kinds of common activities that imply the existence of a genuinely shared venture. (People v. Louie (2012) 203 Cal.App.4th 388, 394, 136 Cal.Rptr.3d 646 ; In re I.M. (2005) 125 Cal.App.4th 1195, 1201, 23 Cal.Rptr.3d 375.) This type of evidence routinely appears in gang enhancement cases. (See People v. Hairston (2009) 174 Cal.App.4th 231, 237, fn. 4, 94 Cal.Rptr.3d 159 [describing testimony that “it was very common for members of different gang subsets to intermingle and hang out together”].) In general, evidence that shows subset members have communicated, worked together, or share a relationship (however formal or informal) will permit the jury to infer that the subsets should be treated as a single street gang.

Where groups lack identifiable hierarchy or similar signs of organization, the prosecution could also demonstrate that various alleged gang subsets manifest specific behavior that is relevant to whether they are part of a single “organization, association, or group.” They may, for example, mutually acknowledge one another as part of that same organization, and evidence may be presented that the organization in question tends to operate in decentralized fashion and in the relevant geographic area. This approach is premised on the fact that members of loosely organized criminal associations may not always evince the amount of openly observable collaborative activity that one might ordinarily perceive in entities dedicated to pursuing lawful activities. But this reality can be reconciled with the STEP Act's provisions requiring the presence of a unitary “organization, association, or group” through evidence of group members' behavior suggesting shared identification with a single group, along with evidence of the alleged group's characteristics. For instance, evidence that two members of different neighborhood subsets have engaged in activities suggesting that they identify one another as belonging to the same criminal street gang could be relevant to showing that the subsets form a single group. Such evidence, coupled together with appropriate evidence that a gang exists, that it operates within a particular geographic area, and that it conducts its activities through subsets or in another decentralized fashion, could permit the inference that the different subsets are members of a single group.

But there are some limits on the boundaries of an identity-based theory. The evidence must demonstrate that an organizational or associational connection exists in fact, not merely that a local subset has represented itself as an affiliate of what the prosecution asserts is a larger organization. (See conc. & dis. opn. of Corrigan, J., post, prosecution could introduce evidence showing that different subsets require their members to perform the same initiation activities. Evidence of this common behavior may be some evidence that members identify themselves as belonging to the same gang. The key is for the prosecution to present evidence supporting a fact finder's reasonable conclusion that multiple subsets are acting as a single “organization, association, or group.” (§ 186.22(f).) Evidence of self-identification must refer to the particular activities of subsets, and must permit the jury to reasonably conclude that the various subsets are associated with each other because of their shared connection with a certain group. And where, as in this case, the alleged perpetrators of the predicate crimes under section 186.22(f) are members of particular subsets, the behavior of those subsets' members must connect them to the gang the defendant sought to benefit.

Because criminal street gangs may vary in size, scope, and degree of informality, the circumstances of a given case may lead the prosecution to seek different ways of establishing that a particular gang meets the requirements of section 186.22(f). For example, when a defendant commits a crime to benefit a particular subset, and the prosecution can show that the subset in question satisfies the primary activities and predicate offense requirements, there will be no need to link together the activities of various alleged cliques; nor is there likely to be uncertainty about what the relevant “criminal street gang” is. Indeed, our cases suggest that many gang-related prosecutions involve the conduct of discrete criminal street gangs and do not turn on the relationship between alleged gang subsets. (See, e.g., Albillar, supra, 51 Cal.4th at pp. 52–53, 119 Cal.Rptr.3d 415, 244 P.3d 1062 ; Loeun, supra, 17 Cal.4th at p. 6, 69 Cal.Rptr.2d 776, 947 P.2d 1313.)

Regardless of the theory the prosecution chooses, there is no requirement that the subset gangs have peaceably coexisted for them to constitute a single organization. Prunty claims that “subset Norteño gangs were often in fierce rivalry with one another—not working together for any common Norteño purpose.” He asserts that this evidence prohibits the inference that the alleged subsets were part of a single group. We disagree that evidence of conflict among gangs will defeat other evidence of an organizational or associational connection. Just as proof of “internecine warfare” among various factions does not defeat proof that a single criminal “enterprise” exists (Orena, supra, 32 F.3d at p. 710 ), evidence that subset gangs have periodically been at odds does not necessarily preclude treating those gangs collectively under the STEP Act—particularly since, as discussed above, the STEP Act applies more broadly than traditional criminal enterprise law.

What section 186.22(b)does require is that the “criminal street gang” the prosecution proves to exist be the same gang that the defendant sought to benefit (or which directed or associated with the defendant in by two other alleged Sureño subsets, the Southside and Loma Baker subsets. Absent more evidence, it is impossible for the jury to infer that the Sureño gang the defendant wished to benefit includes any of these alleged subsets. Nor could the jury permissibly infer from this evidence, on its own, that the Southside and Loma Baker subsets have any relationship with the Sur Santos Pride and Vario Locos Trece subsets. One way the prosecution could solve this problem, for example, would be to introduce evidence of a relationship among all four alleged subsets—a relationship that would permit the inference that they constitute a single Sureño organization. Or the prosecution could show some connection among the Southside and Loma Baker subsets and the Sureño gang the defendant intended to benefit. The prosecution need not establish the metes and bounds of that Los Angeles Sureño gang, or show an organizational or associational connection that unites all alleged gang subsets in the area. But it must have a theory of the “criminal street gang” at issue that shows the same group to satisfy all elements of the STEP Act.

Reviewing the evidence in light of the framework we have set forth, we find that the prosecution failed to prove the existence of a single “criminal street gang” within the STEP Act's meaning that fit the prosecution's theory of why the gang enhancement applied in this case. The critical shortcoming in the prosecution's evidence was the lack of an associational or organizational connection between the two alleged Norteño subsets that committed the requisite predicate offenses, and the larger Norteño gang that Prunty allegedly assaulted Manzo to benefit. The evidence was not sufficient to permit the jury to infer that the organization, association, or group at issue included the subsets that committed the predicate offenses.Norteños. This decision dictated the type of evidence the prosecution needed to introduce showing that the Sacramento-area Norteños satisfy section 186.22(f) : the prosecution needed to show that the same group engaged in illicit primary activities, and committed the predicate offenses. The prosecution's evidence as to the former requirement was likely sufficient; Sample testified that “the Norteños” in the area engage in various criminal practices, including homicide, assault, and firearms offenses.

But where the prosecution's evidence fell short is with respect to the predicate offenses. Sample referred to two offenses involving three alleged Norteño subsets: a confrontation between the Varrio Gardenland Norteños and members of the Del Paso Heights Norteños that escalated into a fatal shooting; and a shooting by members of the Varrio Centro Norteños that resulted in the death of a “drop-out Norteño.” Although Sample characterized these groups as Norteños, he otherwise provided no evidence that could connect these groups to one another, or to an overarching Sacramento-area Norteño criminal street gang. Sample did not describe any evidence tending to show collaboration, association, direct contact, or any other sort of relationship among any of the subsets he described. None of his testimony indicated that any of the alleged subsets had shared information, defended the same turf, had members commonly present in the same vicinity, or otherwise behaved in a manner that permitted the inference of an associational or organizational connection among the subsets. Contrary to the minority opinions' suggestions, we should neither speculate to fill evidentiary gaps (conc. & dis. opn. of Corrigan, J., post, 192 Cal.Rptr.3d at p. 335, 355 P.3d at pp. 501–502), nor defer to the jury's findings when there is no reasonable basis to do so (conc. & dis opn. of Cantil–Sakauye, C.J., post, at pp. 329–331, 355 P.3d at pp. 497–499; see also pp. 326–328, 355 P.3d at pp. 494–496, post ).

Nor did Sample's testimony demonstrate that the subsets that committed the predicate offenses, or any of their members, self-identified as members of the larger Norteño association that the defendant sought to benefit. Although there was ample evidence that Prunty self-identified as both a member of the Detroit Boulevard Norteños and the larger umbrella Norteño gang, and that committed the predicate offenses, Sample offered no evidence that their members behaved in a manner that conveyed their identification with the larger association that Prunty sought to benefit. Instead, Sample simply described the subsets by name, characterized them as Norteños, and testified as to the alleged predicate offenses. He offered no additional information about their behavior or practices that could reasonably lead the jury to conclude they shared an identity with a larger group. The jury was consequently left with no way to connect the subsets that committed the predicate offenses to the larger Norteño group the prosecution claimed Prunty acted to benefit.

Sample did testify that “Norteño street gangs” are “associate[d]” with the Nuestra Familia prison gang. While such evidence might permit the inference that the various alleged gang subsets share a common origin, it does not indicate whether the specific subsets involved in committing the predicate offenses have any ongoing relationship—the kind of relationship that amounts to being part of the same group—with the entity the defendant sought to benefit. Sample did not testify, for instance, about any relationship between Nuestra Familia shot callers and any of the Sacramento-area Norteño subsets. While he did reference “written” and “unwritten” rules that govern “what gang members can and can't do,” he did not explain whether these rules applied to the particular subsets in this case.

Certain evidence relevant to the gang enhancement inquiry is indeed found in some of Sample's additional testimony. But it was nonetheless insufficient to show the existence of a single “criminal street gang” encompassing both the group Prunty sought to benefit and the specific subsets whose members committed the predicate offenses. Sample testified that Norteño gang subsets use the same name, symbols, and colors; use similar gang signs, tattoos, graffiti, and other methods of communication; wear similar clothing and colors; and are united in their opposition to Sureño gang members. But this evidence tends to show that the alleged subsets use common symbols or common identifying colors and thereby fulfill the element of section 186.22(f)“organization, association, or group” under the STEP Act's meaning—or, critically, that the alleged subsets that committed the predicate offenses were part of that group.

To be sure, the prosecution did introduce some evidence of collaboration between members of different gang subsets—namely, Prunty and his companion Emilio Chacon. Sample testified that Chacon was a member of the Varrio Franklin Boulevard Norteños. Prunty met up with Chacon earlier on the day of the shooting, and the two planned to steal a bottle of liquor from a supermarket in the shopping center where the shooting took place. Chacon was also at least tangentially involved in the confrontation with Manzo. While this evidence shows collaboration, it does not establish the necessary connection to the Norteño subsets that committed the predicate offenses. Sample did not testify as to any relationship between the Varrio Franklin Boulevard subset and either of the two alleged subsets that committed the predicate offenses. And while the relationship between Chacon and Prunty is some evidence of a larger Sacramento-area Norteño group, the prosecution's case still lacks evidence connecting the Varrio Gardenland and Varrio Centro cliques to that group. The absence of this necessary connection precludes application of the gang enhancement here.

It is also true that Sample testified extensively about “the Norteños” and described them as a criminal street gang. He testified as to the group's size, its geographic location, and its general practices. While this evidence was surely relevant to the gang enhancement's application, Sample's characterization of a group as a “criminal street gang” is insufficient absent some reason to believe that conclusion was based on the evidence necessary to show a single criminal street gang to exist as the STEP Act defines it. The dissent claims that Sample's testimony provided just such a reason. (conc. & dis. opn. of Cantil–Sakauye, C.J., post, 192 Cal.Rptr.3d at pp. 331–332, 355 P.3d at pp. 498–499.) Yet Sample's statements describing “the Norteños” as “a Hispanic street gang” are—for purposes of showing a criminal street gang to exist (id. at pp. 329–331, 355 P.3d at pp. 497–498)—purely conclusory and essentially of no use to the fact finder. (See Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117–1118, 8 Cal.Rptr.3d 363.) Sample did not describe any facts tending to show an organizational or associational connection among the Norteño subsets he described, nor did he articulate any reasons for concluding that all such subsets are part of a single criminal street gang. Nor did Sample describe the material he relied on in reaching his conclusions—implicit or otherwise (conc. & dis. opn. of Cantil–Sakauye, C.J., post, at pp. 329–331, 355 P.3d at pp. 497– 498)—about the Varrio Gardenland and Varrio Centro subsets and their relationship to one another or a larger group. Thus, his testimony on this point had no value to the jury. (See People v. Lawley (2002) 27 Cal.4th 102, 132, 115 Cal.Rptr.2d 614, 38 P.3d 461.) The jury could not have relied on Sample's testimony to find that the prosecution established the existence of a criminal street gang here.

Although we find the evidence here insufficient to qualify Prunty for the gang enhancement, nothing in this opinion reflects any skepticism regarding the general factual question of whether the Norteños exist—a question that amicus curiae Pacific Juvenile Defendant Center asks that we resolve in the negative. We have previously upheld gang enhancements where the “criminal street gang” in question was a geographically dispersed group. here insufficient, nothing in our opinion reflects doubt that prosecutors can prove the existence of such a criminal street gang when the evidence supports such a conclusion. The only evidentiary question before us is whether the prosecution—consistent with the theory it advanced regarding what constituted the relevant “criminal street gang”—presented sufficient proof in this case.

III. Disposition

We conclude that section 186.22(f)'s definition of a “criminal street gang”—and in particular its requirement of an “organization, association, or group”—calls for evidence that an organizational or associational connection unites the “group” members. When, as here, the prosecution relies on the conduct of subsets to show a criminal street gang's existence, the prosecution must show a connection among those subsets, and also that the gang those subsets comprise is the same gang the defendant sought to benefit. Because the decision below does not accord with this standard, we reverse the Court of Appeal's judgment as to defendant Prunty's sentence and remand for further proceedings not inconsistent with this opinion.

WE CONCUR: WERDEGAR, LIU, and KRUGER, JJ.

Concurring and dissenting opinion by CANTIL–SAKAUYE, C.J.

This case was a classic gang crime. It was a confrontation between two Sacramento Norteños and a Sacramento Sureño in a shopping plaza parking lot in an area claimed by the Norteños, which escalated from the exchange of Norteños and Sureños gang slurs into a shooting that seriously injured multiple individuals, including an innocent young child. Surely, this is the very type of gang crime at which the STEP Act was aimed. (Pen.Code § 186.21 ; People v. Rodriguez (2012) 55 Cal.4th 1125, 1129, 150 Cal.Rptr.3d 533, 290 P.3d 1143 ; People v. Albillar (2010) 51 Cal.4th 47, 55, 119 Cal.Rptr.3d 415, 244 P.3d 1062.) Not surprisingly, the jury found defendant committed the underlying crimes “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b).)

When a reviewing court considers a claim that the evidence is insufficient to support a verdict, it considers the entire record in the light most favorable to the prosecution and presumes in support of the verdict the existence of every fact the jury could reasonably have deduced from the evidence. (People v. McCurdy (2014) 59 Cal.4th 1063, 1104, 176 Cal.Rptr.3d 103, 331 P.3d 265.) Applying this standard here, I disagree with my colleagues who conclude that there is insufficient evidence in the record to support the jury's true finding on the gang enhancement. The circumstances of the crime and the unchallenged testimony of the prosecution's expert, Detective Sample, sufficiently established the necessary links between defendant, Emilio Chacon, the predicate crime gang members and the Sacramento Norteños.

Evidence was admitted at trial in this case that defendant identified himself, in an interview with law enforcement, as a “Norte” or a “Northerner” who “claimed” the Detroit Boulevard neighborhood of Sacramento as his “set.” He told officers with the Varrio Franklin Boulevard subset. Chacon's body was tattooed with symbols and the number 14, associated with the Norteños. Defendant and Chacon had traveled from their own southern area of Sacramento to an area near a Panda Express restaurant in midtown Sacramento intending to go into the nearby Safeway store to steal a bottle of brandy. The neighborhood they were in was territory claimed by the Varrio Centro Norteños and the Southside Park Norteños. Defendant was wearing clothing in the red color typically associated with the Norteños.

In the parking lot, defendant and Chacon encountered and confronted Gustavo Manzo, who was wearing attire typically associated with the Sureños and who was in fact a validated Sureños gang member. Both defendant and Chacon called out terms and phrases such as “Norte,” “Northerner,” “this is Norte,” “fuck a Skrap, 916 [Sacramento's regional telephone area code],” and “fucking Skrap, 916.” Defendant did not yell “Detroit Boulevard” or any variant and Chacon did not yell “Varrio Franklin Boulevard” or any variant. They both claimed the Norteños gang that connected them together, challenging a perceived Sureño who was in territory claimed by the Sacramento Norteños. In response, Manzo and his girlfriend called defendant and Chacon “Busters,” a general derogatory term for Norteños used by Sureños. The confrontation escalated with defendant throwing gang signs and exchanging with Manzo further derogatory gang slurs. It culminated in defendant drawing a gun and shooting Manzo and Manzo's girlfriend's 10–year–old brother.

Under these circumstances, the prosecution reasonably sought to prove the existence of a Sacramento Norteños criminal street gang and that defendant's crimes were committed for the benefit of that gang.

I agree with Justice Corrigan that the specific and narrow issue presented in this case is what evidence is necessary to prove a criminal street gang enhancement when the prosecution proffers evidence that a defendant committed a felony to benefit a street gang that operates through subsets, but the predicate offenses are committed by members of a subset of such gang. (Conc. opn. of Corrigan, J., 192 Cal.Rptr.3d at pp. 332–333, 355 P.3d at p. 500.) I disagree, however, that the evidence admitted in this case, notably unchallenged by the defense at trial, was insufficient.

For the purpose of proving the existence of a Sacramento Norteños criminal street gang, the prosecution called Sacramento Police Department Detective John Sample as its expert witness on Hispanic gangs. After Sample testified to his extensive training, experience and previous testimony as an him as a qualified expert witness on the subject.

Sample testified that “the Norteños” are “a Hispanic street gang active in Sacramento and throughout California” with approximately 1,500 local members in Sacramento. (Italics added.) Sample testified that the Sacramento Norteños do not have a general “turf.” Rather, the members are “all over Sacramento, from north and south.” He explained, however, that there are “subsets based on different neighborhoods,” which the members will “claim.” Asked to give the jury an idea of their common identifying names, signs or symbols, Sample testified that because Norteño was Spanish for north, the Norteños use “derivatives of the north, Norteños, northerner.” They also use the letter N. And because N is the 14th letter of the alphabet, they also use the number 14 or derivatives of it such as one and four dots or the Roman numeral XIV. According to Sample, the color typically associated with Norteños is the color red. The primary enemies of the Norteños are Sureños gang members. Sample testified that the Sureños are “a street gang just like the Norteños.” (Italics added.) They identify themselves with the color blue, the letters S and M, and the number 13 with its derivatives. Sample described the “primary activities” of the Sacramento Norteños as unlawful homicide, attempted murder, assault, firearms offenses, and weapons violations.

The prosecution then asked Sample if he would agree that the Norteños in the Sacramento area engage in a pattern of criminal Sample went on to describe how a shooting such as the one in this case would be intended to benefit the Norteños by enhancing their reputation for violence and ruthlessness.

Sample was asked, during cross-examination, to explain the genesis of the north/south rivalry between the Norteños and Sureños gangs. In response, Sample testified that the two groups evolved from prison gangs active from at least the 1960s and 1970s. According to Sample, the Mexican Mafia was one of the strongest prison gangs. It would often victimize Latino inmates who were not part of the gang culture. Eventually, Latino inmates who were not part of the Mexican Mafia formed their own prison gang which they called the Nuestra Familia, which means “our family” in Spanish. Sample testified that the prison rivalry eventually “poured out into the streets.” Outside prison, those who identified with Nuestra Familia called themselves Norteños and those who identified with the Mexican Mafia called themselves Sureños.

Viewing this record, as we must, in the light most favorable to the judgment (People v. McCurdy, supra, 59 Cal.4th at p. 1104, 176 Cal.Rptr.3d 103, 331 P.3d 265 ; People v. Rountree (2013) 56 Cal.4th 823, 852–853, 157 Cal.Rptr.3d 1, 301 P.3d 150 ), there is evidence that is reasonable, credible, and of solid value from which a rational trier of fact could find that the Sacramento Norteños is a criminal street gang. Indeed, the very case the majority cites for the deferential standard of review when evaluating the sufficiency of evidence (maj. opn., 192 Cal.Rptr.3d at p. 316, 355 P.3d at p. 486, citing People v. Zamudio (2008) 43 Cal.4th 327, 75 Cal.Rptr.3d 289, 181 P.3d 105 ) reminds us that “[a] reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient evidence to support’ ” the jury's verdict.” (Id., at p. 357, 75 Cal.Rptr.3d 289, 181 P.3d 105.) “ ‘We do not reweigh evidence or reevaluate a witness's credibility.’ ” (People v. Scott (2011) 52 Cal.4th 452, 487, 129 Cal.Rptr.3d 91, 257 P.3d 703.) “ ‘Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.’ ” (People v. Brown (2014) 59 Cal.4th 86, 106, 172 Cal.Rptr.3d 576, 326 P.3d 188.) “Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.” (Evid.Code § 805.) A witness testifying in the form of an opinion may state on direct examination the basis for his or her opinion and a court may in its discretion require that such a witness be examined before testifying regarding “the reasons for his opinion and the matter ... upon which it is based” (Evid.Code § 802 ), but any inadmissible material that forms the basis of the opinion testimony is not “ ‘independent proof’ of any fact.” (People v. Gardeley (1996) 14 Cal.4th 605, 619, 59 Cal.Rptr.2d 356, 927 P.2d 713.) Correspondingly, the failure to testify to such basis is not a failure of “proof.” Under these principles, Detective Sample's expert testimony, taken

as a whole and in context, when viewed in conjunction with the evidence of the circumstances of the crime, including the collaboration of defendant and Chacon in traveling to another Norteños area of Sacramento, indeed the territory of one of the predicate crime subsets, with the criminal purpose of shoplifting and then mutually confronting Manzo with Norteños taunts in an apparent attempt to protect Norteños turf, is sufficient to support the jury's verdict finding true the gang enhancement under section 186.22, subdivision (b).

The majority cites People v. Lawley (2002) 27 Cal.4th 102, 115 Cal.Rptr.2d 614, 38 P.3d 461 in support of its conclusion that Sample's characterization of the Sacramento Norteños as a criminal street gang, without a description of further facts or reasoning, is of no value and constitutes insufficient evidence of that fact. (Maj. opn., 192 Cal.Rptr.3d at p. 327, 355 P.3d at p. 495.) Lawley is not on point. In Lawley, this court rejected the defendant's contention that the trial court was required to appoint a third competency expert when two previously appointed experts came to opposite conclusions. (27 Cal.4th at pp. 131–132, 115 Cal.Rptr.2d 614, 38 P.3d 461.) We found appointment of a third expert in such situation unnecessary, noting that the trial court was able to assess the weight and persuasiveness of the experts' findings and conclusions without resort to further expert opinion. In For the same reason, Sample's testimony implicitly establishing that the subset gang members who committed the predicate crimes considered themselves to be part of the Sacramento Norteños may not be rejected on appeal. Sample's testimony was not unreasonable, incredible, or lacking in solid value simply because it expressed his expert opinion that the predicate crime gang “subsets” acted as part of the Sacramento Norteños. (Evid.Code § 805.) Indeed, there is nothing in the record before us that suggests Sample's opinion lacked a sound basis given his broad experience and personal knowledge of Hispanic gangs in the Sacramento area, including the predicate offense Sacramento Norteños subsets.

It is well settled that proof may be by both direct and circumstantial evidence. (People v. Jones (2013) 57 Cal.4th 899, 961, 161 Cal.Rptr.3d 295, 306 P.3d 1136 [circumstantial evidence may be sufficient to prove guilt beyond a reasonable doubt]; People v. Morrow (1882) 60 Cal. 142, 144–145 [circumstantial evidence may be as strong as direct evidence in proving guilt]; see People v. Livingston (2012) 53 Cal.4th 1145, 1167, 140 Cal.Rptr.3d 139, 274 P.3d 1132 [the law regarding proof by direct and circumstantial evidence is correctly stated in CALCRIM No. 223 & CALJIC No. 2.00 ].) Here there was such evidence supporting a reasonable inference that the predicate crime gang subsets were part of the Sacramento Norteños and that the Sacramento Norteños is a criminal street gang. The courts in People v. Ortega (2006) 145 Cal.App.4th 1344, 52 Cal.Rptr.3d 535 and In re Jose P. (2003) 106 Cal.App.4th 458, 130 Cal.Rptr.2d 810 upheld jury verdicts finding the Norteños to be a criminal street gang. We should do the same.

I CONCUR: CHIN, J.

Concurring and dissenting opinion by CORRIGAN, J.

I concur in the judgment and write separately to clarify the scope of our decision. The issue we address is a narrow one. It arises only when the prosecution seeks to prove a street gang enhancement by showing the defendant committed a felony to benefit a broader umbrella gang, but seeks to prove the requisite pattern of criminal gang activity with evidence of felonies committed by members of subsets to the umbrella gang. Our decision is limited to that factual scenario.

To prove the street gang enhancement, the prosecution must prove that defendant committed the underlying crime “for the benefit of, at the direction of, or in association with any criminal street gang....” (Pen.Code § 186.22, subd. (b).) It must also prove the following:1. The defendant acted with the specific intent to promote, further, or assist criminal conduct by members of an identifiable group. As the majority notes, the group must be one that its members recognize as an ongoing entity with which they associate. (See maj. opn., ante, 192 Cal.Rptr.3d at pp. 325–326, 355 P.3d at pp. 493–494.)

2. That group must be of a specific kind in order to satisfy the STEP Act's definition of a criminal street gang. The group may be formal or informal, but it must be an ongoing association of three or more people who share a common name or identifying symbol. (§ 186.22, subd. (f).) The majority is correct that the mere sharing of a common name or symbol is insufficient, standing alone, to satisfy the statute. In addition, one of the primary activities of the group must be the commission of certain enumerated crimes and group members must engage in a pattern of criminal gang activity.

3. This pattern of criminal gang activity must be proven by evidence that a gang member or members committed two offenses as set out in the statute. These acts are described as “predicate offenses.” (People v. Tran (2011) 51 Cal.4th 1040, 1044, 126 Cal.Rptr.3d 65, 253 P.3d 239.)

This case involves a specific kind of criminal street gang: an umbrella group allegedly operating through smaller subsets that may be independent from each other, but which associate and identify with the broader umbrella group. As the majority and the Chief Justice note, there is abundant evidence in this record that an entity known as the Norteños exists, operates in the Sacramento area, shares common symbols and the name “Norteño,” and operates through smaller associated subsets. Likewise, there is substantial evidence that defendant associated with the larger Norteño gang, and intended to promote, further, or assist criminal conduct by its members.

To prove the required predicate offenses, the prosecution's gang expert, Sample, testified about crimes committed by specifically named groups: Varrio Gardenland Norteños and Varrio Centro of the umbrella group of Norteños. But he did not provide any testimony from which the jury could conclude that these smaller groups actually considered themselves part of the broader Norteño group, other than the sharing of the name and symbols. While the use of a common name or symbol is necessary, something more is required.

The evidence fell short only because Sample failed to testify the Varrio Centro Norteños and the Varrio Gardenland Norteños were actually associated with the broader Norteño umbrella group in that they consider themselves members of, not only their own subset, but of the larger group of Norteños as well. It is that final link alone that is missing here, and its absence undermines the verdict.

The majority concludes that “the STEP Act requires the prosecution to introduce evidence showing an associational or organizational connection that unites members of a putative criminal street gang” (maj. opn., ante, 192 Cal.Rptr.3d at pp. 312–313, 355 P.3d at p. 483), and gives a series of examples (id. at pp. 320–324, 355 P.3d at pp. 489–493). The examples given include evidence of “shared bylaws or organizational arrangements” (id. at p. 321, 355 P.3d at p. 490), the existence of collaborative activity (id. at pp. 321–322, 355 P.3d at pp. 490–491), or self-identification as part of a larger group (id. at pp. 322–323, 355 P.3d at pp. 491–492).

Contrary to the majority's suggestion, self-identification is not merely one way to prove the requisite connection. It is the organizing principle that unites the majority's myriad examples. The principle is derived directly from the STEP Act's definition of a criminal street gang as an “ongoing organization, association, or group of three or more persons, whether formal or informal ... having a common name or common identifying sign or symbol....” (§ 186.22, subd. (f).) A gang is defined internally by its members, who then show themselves to be a group by using a common name or symbol that identifies their group and distinguishes it from others. The same principle applies when a larger umbrella group operates through subsets. A subset recognizes itself as both the subset and as part of the umbrella group. It demonstrates that self-identification through its conduct.

The majority asserts that “there are some limits on the boundaries of an identity-based theory” and it would be insufficient “merely that a local subset has represented itself as an affiliate of what the prosecution asserts is a larger I agree that the mere subjective intent of particular subset members to identify with an umbrella group is insufficient to show the relevant connection. The connection must be an objective one based on the subset's conduct. That is why the STEP Act requires proof of predicate offenses. However, I disagree with any suggestion that different subsets must acknowledge each other as part of a larger group, or that the umbrella group and a subset must somehow “mutually acknowledge” each other. A particular Norteño subset may be part of the larger umbrella group, yet lack a relationship with, or knowledge of, any other particular subset.

Detective Sample's description of the Norteño gang's structure was uncontroverted below and reflected a highly informal group. Its informality does not exclude it from the reach of the statute. It would be remarkable indeed to expect a gang like that described here to operate under a set of “bylaws” or be hierarchically linked. The statute embraces criminal street gangs that differ dramatically from Murder Incorporated. Some sophisticated criminal enterprises may operate in a highly structured way, with an organizational chart and designated “shot callers.” But the STEP Act does not require that any given gang do so, so long as the statutory elements are met. There need not be proof that different subsets work together, or have any particular affection for each other. This case provides no occasion for us to speculate about what other kinds of evidence might suffice in other circumstances, with gangs that operate differently.

When the proffered predicate offenses are allegedly committed by members of a subset, there must be sufficient evidence of a link between that subset and the umbrella group. The link must show the subset self-identifies as associating with the umbrella group, and demonstrates that association through its conduct. This link can, of course, be established in a variety of ways, including statements by members or by inferences drawn from their behavior. Because the evidence of such self-identification was lacking here, I concur with the majority's holding that the Court of Appeal's judgment must be reversed.