Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA038466. Honorable Lisa M. Chung, Judge.
Linn Davis, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan and Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
INTRODUCTION
A jury convicted Appellant Christopher E. Cox of numerous criminal counts, including, in part, possession for sale of heroin, possession for sale of cocaine base, possession of an assault weapon and possession of a weapon by a felon. The jury also found that Cox committed these acts for the benefit of a gang pursuant to Penal Code section 186.22, subdivision (b)(1), thereby subjecting him to a four year sentence enhancement. On appeal, Cox contends that there was insufficient evidence to support the gang enhancement. We agree and vacate Cox’s Section 186.22(b)(1) sentence enhancement.
FACTUAL AND PROCEDURAL BACKGROUND
A. Facts Leading to Appellant’s Arrest
On May 1, 2007, at approximately 3:00 p.m., Los Angeles County Detective Richard O’Neil and his partner, Los Angeles Deputy Sherriff Richard Morgan, witnessed a black GMC Denali with no rear license plate pass by at a high rate of speed. The officers began following the vehicle, which came to a stop in front of an apartment complex located on East Lancaster Boulevard. Appellant Christopher Cox, who was sitting in the right front seat of the car, exited the vehicle. Immediately thereafter, Detective O’Neil initiated a traffic stop and approached the driver of the vehicle. While O’Neil was talking to the driver, Deputy Morgan approached Cox and asked him a series of questions. Cox informed Morgan that he was an active member of the “Avalon Gangster Crips, ” went by the moniker “CYKE” and had several gang tattoos located on his arms. During the conversation, Deputy Morgan also determined that Cox was on active parole.
O’Neil and Morgan searched the Denali and found a vehicle registration that showed Cox’s address as 440 East Lancaster Boulevard, which was located directly in front of where the Denali had stopped. Los Angeles Deputy Sherriff Mark Donnell, who had joined Officers O’Neil and Morgan, also searched the car and located two address books that contained writings stating “Avalon Gangsta” and “CYCOCEE” A third notebook contained writings stating “AGC” and “A-Z Upper 40.” Donnell also observed that Cox had several tattoos located between his elbow and shoulder that included the symbols “A40TYZ, ” “CEE”, and “GC.” Based on his training and experience, Donnell believed that the writings and tattoos signified that Cox was a member of the Avalon Gangster Crips.
After searching the Denali, the officers conducted a “parole compliance” search on Cox’s apartment at 440 East Lancaster Boulevard. Detective O’Neil accessed the apartment with keys that he found in Cox’s pocket. Upon opening the door of the apartment, O’Neil saw an assault rifle leaning up against the wall. O’Neil proceeded to the bedroom and found a jacket containing several identification cards in Cox’s name, multiple social security cards and a plastic bag with approximately 30 balloons containing heroin.
Deputies Morgan and Donnell searched the kitchen of the apartment and found a green plastic bin containing 17 individually wrapped packages of cocaine base. They also found a box of gloves, several small baggies, two digital scales, $157 in cash and a razor blade, plate, mixing bowl and knife, all of which had a cocaine residue. Deputy Donnell also discovered a pay stub made out to Cox, which was dated April 2007 and listed his address as 440 East Lancaster Boulevard.
While O’Neil, Morgan and Donnell searched the Lancaster apartment, Los Angeles Deputy Sheriff Tim Mulder searched a second apartment associated with Cox. In the garage of the apartment, Mulder located a belt buckle containing the word “Cyke” and a parole notice addressed to Cox, which stated that he was a member of the Avalon Gangster Crips. Mulder also found a photograph in which Cox was pictured in front of graffiti containing the letters “AGC” alongside numerous other symbols that had been crossed out. Officer Mulder believed that the “AGC” graffiti stood for Avalon Gangster Crips and that the crossed out symbols were rival gang insignias. Based on his training and experience, Mulder believed that the crossed out symbols signified that the Avalon Gangster Crips had overtaken rival gang territory.
The officers identified this second apartment through mail that was found at Cox’s 440 East Lancaster Boulevard apartment.
B. Proceedings in the trial court
The District Attorney’s office Amended Information charged Cox with numerous counts including, in relevant part: possession for sale of heroin (Health & Saf. Code, § 11351), possession for sale of cocaine base (Health & Saf. Code, § 11351.5), possession of an assault weapon (Penal Code, § 12280, subd. (b)) and possession of a firearm by a felon (Penal Code. § 12021, subd. (a)(1)). The Information further alleged that, pursuant to Penal Code section 186.22, subdivision (b)(1), the drug and gun counts were “committed for the benefit of, at the direction of and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members.”
In addition, Cox was charged with making a false financial statement (Penal Code, § 532a, subd. (1)), counterfeiting a seal (Penal Code, § 472), possession of a forged driver’s license (Penal Code, § 470b) and possession of body armor (Penal Code, § 12370, subd. (a)).
At trial, the People called Officers O’Neil, Morgan, Donnell and Mulder, who testified to the facts summarized above. In addition, the People called multiple witnesses who stated that Cox lived at the apartment located at 440 East Lancaster Boulevard. The People also called two expert witnesses. The first expert, Kerry Levenson, testified that the items found in the Lancaster apartment indicated that Cox possessed heroin and cocaine for the purpose of sale.
The prosecution called two additional officers who testified that: (1) at the time of his booking, Cox was in possession of numerous paystubs listing his address as 440 East Lancaster Boulevard, and (2) in 2004, Cox had identified himself to law enforcement as a member of the Avalon Gangster Crips.
The second expert, Ty Berry, was a gang expert. Berry had approximately twelve years experience investigating gang activity, which included various investigations related to the Avalon Gangster Crips. Berry described the Avalon Gangster Crips as a “turf oriented gang” that operated within South Central Los Angeles, which is approximately 80 miles from where Cox was arrested. Berry further testified that the gang engaged in “shootings, assault with deadly weapons, firearms, vehicle thefts, robberies, narcotic sales... [and] assaults.”
Berry stated that “the Avalon Crips’ particular neighborhoods would be Martin Luther King Boulevard to the North, Slauson to the south, Central Avenue to the east and Figueroa maybe even Vermont to the west.” Cox was arrested in Lancaster, California.
The prosecution offered Berry a hypothetical summarizing the facts in the case and asked whether, in his opinion, the defendant “was selling drugs for the benefit of the Avalon Gangster Crips.” Berry responded in the affirmative, explaining that:
The basis for my opinion... is that narcotic sales are very, very common means in which gang members make money not only for themselves, for their families, for their associates. Quite often they are unemployed and they have no other means of making money or earning a living other than criminal activity. Narcotics sales are very fast, a very easy way to make several thousand dollars in a week. Generally, it’s very common, in my experience, that gang members participate in this particular narcotic activity. It benefits the gang because it creates revenue for the gang. That allows them to live, number 1, even pay some of their bills, utilities or whatnot, go to the grocery store, get a bite to eat. Not only that, it provides them with the cash flow to buy more narcotics, buy weapons, settle debts, gambling, things of that nature
Berry further opined that the defendant possessed the assault rifle for the benefit of the Avalon Gangster Crips:
Quite frequently, gang members will possess firearms, in this particular case, an assault rifle, it’s a very dangerous weapon. I’ve been involved in hundreds of cases where assault rifles of that type have been used. Looking at the weapon alone is very intimidating. That’s a big rifle it holds a very large military round its very powerful, it will rip right through an entire house. Possessing that type of weapon, yes it does hold a certain fear factor and it aids the particular gang and it benefits that gang that they are armed, and it aids them in protection from other gangs, rivals of being, you know, robbed for their currency or their narcotics.
Berry also stated that drug and gun crimes benefited the gang by spreading fear and intimidation.
Berry later explained that he believed the defendant was acting to benefit the Avalon Gangster Crips despite the fact that he was arrested outside the gang’s traditional territory. Berry stated that, in his experience, “since the economy has gone south in the housing market, we have had a large influx of gang members [into the Antelope Valley] [¶]... and with that, they continue their criminal activity. And the way in which it benefits the particular gang is its actually spreading their seed from one particular area or neighborhood throughout the county.... [¶] And it actually aids and abets the reputation, and it builds fear and intimidation throughout the community up here.”
The jury convicted Cox on all counts and found that his drug and firearms crimes were committed for the benefit of a gang within the meaning of Penal Code section 186.22, subdivision (b)(1). At sentencing, the trial court added four years of prison time for the Section 186.22 gang enhancement. Cox appeals the application of the gang enhancement and various other sentence enhancements.
The trial court dismissed count 10, possession of body armor.
The court added a four year gang enhancement on counts 1, 2, 3 and 4. However, the sentences imposed on counts 1, 3 and 4 were to run concurrent with the sentence on count 2, which the court designated as the principal term. Therefore, although the trial court imposed an enhancement on each of the first four counts, it only increased Cox’s prison term by a total of four years.
DISCUSSION
A. There Was Insufficient Evidence to Support a Gang Enhancement
Cox concedes that substantial evidence supported the jury’s finding that he committed the substantive crimes charged in the Information. He further concedes that there was substantial evidence to establish that, at the time of his arrest, he was an active member of the Avalon Gangster Crips. Cox argues, however, that there was insufficient evidence to support the jury’s determination that his drug or gun crimes were committed for the benefit of a gang within the meaning of Penal Code section 186.22, subdivision (b)(1). Specifically, Cox contends that the evidence merely showed that he was a gang member and that the jury could not rely on Detective Berry’s expert testimony because it was speculation unsupported by any substantive evidence. As a result, Cox argues that his gang enhancements must be vacated. We agree.
1. Standard of Review
“To assess the evidence’s sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict – i.e., evidence that is reasonable, credible, and of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.]” (People v. Ramon (2009) 175 Cal.App.4th 843, 850.)
2. There was insufficient evidence to support the gang enhancement
Penal Code section 186.22, subdivision (b)(1) requires that “any person who is convicted of a felony committed for the benefit of a gang, 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... [¶]... [¶]... shall be punished by an additional term of two, three, or four years.” The California Supreme Court has clarified that section 186.22, subdivision (b)(1) “does not criminalize mere gang membership; rather, it imposes increased criminal penalties only when the criminal conduct is felonious and committed not only ‘for the benefit of, at the direction of, or in association with’ a... ‘criminal street gang, ’ but also with the ‘specific intent to promote, further or assist in any criminal conduct by gang members.’” (People v. Gardeley (1996) 14 Cal.4th 605, 623-624.) Therefore, “the record must provide some evidentiary support, other than merely the defendant’s record of prior offenses and past gang activities or personal affiliation, for a finding that the crime was committed for the benefits of, at the direction or, or in association with a criminal street gang.” (People v. Martinez (2004) 116 Cal.App.4th 753, 762.)
In this case, the People offered extensive evidence that Cox was an active member of the Avalon Gangster Crips: Cox stated that he was a member of the gang, he had several tattoos that affiliated him with the gang, he possessed writings and other items that were indicative of gang affiliation and he was photographed in front of an Avalon Gangster Crips symbol. However, the only evidence that Cox’s drug and firearms offenses were committed for the benefit of his gang came in the form of Berry’s expert testimony. Accordingly, the issue for review is whether Berry’s testimony, coupled with the other evidence in the case, supported the gang enhancement.
We are aware that a similar issue is pending before the California Supreme Court in People v. Albillar, Case No. S163905 (review granted August 13, 2008).
“It is well settled that expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a... finding on a gang allegation.” (People v. Ferraez (2003) 112 Cal.App.4th 925, 930.) “‘Generally, an expert may render opinion testimony on the basis of facts given “in a hypothetical question that asks the expert to assume their truth.” [Citation.] Such a hypothetical question must be rooted in facts shown by the evidence, however.’ [Citation.]” (People v. Ward (2005) 36 Cal.4th 186, 209.) However, “[a] gang expert’s testimony alone is insufficient to find an offense gang related.” (People v. Ochoa (2009) 179 Cal.App.4th 650, 657.) Rather, the expert testimony must be accompanied “by some substantive factual evidentiary basis” (id. at p. 661) from which “the jury could reasonably infer the crime was gang related.” (Ferraez, supra, 141 Cal.App.4th at p. 931; see also Ochoa, supra, 179 Cal.App.4th at p. 661 [“something more than an expert witness’s unsubstantiated opinion that a crime was committed for the benefit of, at the direction of, or in association with any criminal street gang is required to justify a true finding on a gang enhancement”].)
The California Courts of Appeal have issued numerous recent decisions analyzing whether expert testimony, considered in conjunction with other evidence introduced at trial, properly supported a Section 186.22(b)(1) gang enhancement. Because we find these cases instructive, we summarize them in detail and then consider whether, in the circumstances of this case, there is sufficient evidence to affirm Cox’s gang enhancement.
In In re Frank S. (2006) 141 Cal.App.4th 1192, (Frank S.), an officer detained a minor when he failed to stop at a red traffic light while riding his bicycle. The officer searched the minor and discovered a knife, a bindle of methamphetamine and a red bandana. At the time of his arrest, the minor informed the officer that “he had been attacked two days prior and needed the knife for protection against ‘the Southerners, ’ because they fe[lt] he supports northern street gangs.” (Id. at p. 1195.) At trial the prosecution introduced evidence demonstrating that the minor was an active gang member. In addition, a gang expert testified that the minor possessed the knife to protect himself and other gang members and that the gang benefited from the minor’s weapon because “it helps provide them protection should they be assaulted.” (Id. at p. 196.) The defendant was convicted of carrying a concealed dagger with a corresponding gang enhancement.
The appellate court reversed the true finding on the gang enhancement, holding that:
[I]n the present case, the expert simply informed the judge of her belief of the minor’s intent with possession of the knife, an issue reserved to the trier of fact.... The prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense. In fact, the only other evidence was the minor’s statement to the arresting officer that he had been jumped two days prior and needed the knife for protection. To allow the expert to state the minor’s specific intent for the knife without any other substantial evidence opens the door for prosecutor to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended.
(Frank S., supra, 141 Cal.App.4th. at p. 1199.)
In People v. Ramon, supra, 175 Cal.App.4th 843, (Ramon), which was decided several years after Frank S., officers stopped the defendant, a conceded gang member, while he was driving a stolen vehicle within his gang’s territory with a fellow gang member. (Id. at p. 847.) Officers found a loaded, unregistered firearm under the driver’s seat. The People charged the defendant with receiving a stolen vehicle, carrying a loaded firearm in public for which he was not a registered owner and corresponding gang enhancements. A gang expert who testified at the trial concluded that the defendant’s crimes would benefit his gang. The expert opined that the defendant and other gang members could conduct crimes with the stolen vehicle and unregistered gun and then dump the items, which would be difficult to trace back to the gang. (Id. at pp. 847-848.) Moreover, both items could be used to spread fear and intimidation within the gang’s territory. (Id. at p. 848.) The jury convicted the defendant and found the gang allegations to be true. (Ibid.)
The appellate court vacated the gang enhancements, concluding that, as in In re Frank S.,
The People’s expert simply informed the jury of how he felt the case should be resolved. This was an improper opinion and could not provide substantial evidence to support the jury’s finding. There were no facts from which the expert could discern whether [the defendant and his companion] were acting on their own behalf the night they were arrested or were acting on behalf of [their gang]. While it is possible the two were acting for the benefit of the gang, a mere possibility is nothing more than speculation. Speculation is not substantial evidence.
(Ramon, supra, 175 Cal.App.4th at p. 851.) The court emphasized that “in order to sustain the People’s position, we would have to hold as a matter of law that two gang members in possession of illegal or stolen property in gang territory are acting to promote a criminal street gang. Such a holding would convert section 186.22(b)(1) into a general intent crime. The statute does not allow that.” (Id. at p. 853.)
Most recently, in People v. Ochoa, supra, 179 Cal.App.4th 650, (Ochoa), the jury convicted the defendant of carjacking and found that he committed the act for the benefit of a gang. The evidence at trial showed that the victim was sitting in a parked car when the defendant approached, pulled a shotgun out of his jacket, pointed it at the victim’s face and told the victim to give him the vehicle. The defendant then got into the vehicle and drove away. Officers testified that the defendant had previously identified himself to law enforcement as a member of the Moreno Trece (13) and had gang tattoos on his back and wrist. A gang expert opined that that the defendant committed the carjacking for the benefit of his gang. The expert concluded that the carjacking would benefit 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 defendant’s status within the gang and by raising the gang’s reputation in the community.” (Id. at p. 656.)
The appellate court ruled that there was insufficient evidence to support a gang enhancement, stating that the
Defendant did not call out a gang name, display gang signs, wear gang clothing, or engage in gang graffiti while committing the instant offenses. There was no evidence of bragging or graffiti to take credit for the crimes. There was no testimony that the victim saw any of defendant’s tattoos. There was no evidence the crimes were committed in Moreno Valley 13 gang territory or the territory of any of its rivals.... Defendant was not accompanied by a fellow gang member.... [¶] While the [expert] testified that the carjacking could benefit defendant’s gang in a number of ways, he had no specific evidentiary support for making such inferences. Indeed, he admitted that there was no indication that defendant had used the vehicle to transport other gang members. There was no testimony that defendant used the vehicle to transport drugs or manifested any intention to do so.
(Ochoa, supra, 179 Cal.App.4th at pp. 662-663.) The court went on to conclude that the expert’s testimony “was based solely on speculation” (id. at p. 663) and vacated the enhancement.
The present case cannot be meaningfully distinguished from Frank S., Ramon or Ochoa. The only “evidence” that Cox committed the crime for the benefit of his gang came in the form of Detective Berry’s expert testimony. Berry stated that, based on his training and experience, he was aware that the Avalon Gangster Crips engaged in drug and gun crimes and described how the gang benefited from those types of activities. He then went on to conclude that, because Cox was a member of the Avalon Gang Crips and had committed drug and gun crimes, Cox necessarily committed those crimes for the gang’s benefit. A review of the record, however, demonstrates that Berry “had no specific evidentiary support for making such inferences.” (Ochoa, supra, 179 Cal.App.4th at pp. 662.)
First, the prosecution did not introduce any evidence that Cox committed his crimes in the Avalon Gangster Crips’ territory. (See, e.g., Frank S., supra, 141 Cal.App.4th. at p. 1199; Ochoa, supra, 179 Cal.App.4th at p. 662.) In fact, Cox was arrested directly outside his apartment, where officers found drugs and a firearm. The apartment was located in Lancaster, California, which is almost 80 miles away from the area that Berry described as the gang’s territory. Nor was there any evidence that the Avalon Gangster Crips, which Berry described as a “turf oriented gang, ” were active in the Lancaster area. When Berry was asked why he believed crimes that occurred outside the Avalon Gangs Crips’ territory were committed for the benefit of the gang, he responded that, as a result of the downturn in the economy, there had been a “large influx of gang members” into the Lancaster area. He also stated that gang members who migrate into new areas “continue their criminal activity” and benefit their gangs by “spreading their seed from one particular area or neighborhood throughout the county.... [¶] And it actually aids and abets the reputation, and it builds fear and intimidation throughout the community up here.” Berry did not, however, testify that the Avalon Gangster Crips had moved into Lancaster or were engaged in criminal conduct in that area. Nor did the prosecution introduce evidence that any Avalon Gangster Crips other than Cox were engaged in criminal activity in the Lancaster area. Therefore, the evidence showed only that Cox was arrested for crimes committed some 80 miles away from where the Avalon Ganster Crips were known to be active.
Second, the prosecution failed to introduce any evidence that Cox committed his crimes with other gang members. (See, e.g., Frank S., supra, 141 Cal.App.4th at p. 1199; Ochoa, supra, 179 Cal.App.4th at p. 662.) At the time of his arrest, no other gang members were present. There was no evidence that gang members had previously visited Cox’s Lancaster apartment or traveled to Lancaster, which might arguably give rise to an inference that the gang participated in the drug and firearm activities.
Third, there was no evidence that Cox called attention to his gang while committing his crimes by yelling out his gang name to third parties, displaying gang signs or bragging about his crimes through gang graffiti. (See, e.g., Ochoa, supra, 179 Cal.App.4th at p. 662.) Nor was there any evidence, other than expert’s testimony, that Cox intended to sell the drugs for the gang or that he intended to use the gun for the benefit of gang members or against a rival gang member. (See, e.g., Frank S., supra, 141 Cal.App.4th at p. 1199; Ochoa, supra, 179 Cal.App.4th at p. 663 [“There was never any suggestion that the alleged victim of the brandishing charge was a rival gang member or had committed any offenses against defendant or his gang”].) Indeed, because Cox’s conviction was predicated entirely on the fact that officers found contraband in his apartment, nobody actually witnessed Cox engage in any behavior while physically in possession of the illegal drugs or firearm. In sum, we think this is a clear case where “[t]here were no facts from which the expert could discern whether [the defendant] w[as] acting on [his] own behalf the night [he was] arrested or [was] acting on behalf of [his gang].” (Ramon, supra, 175 Cal.App.4th at p. 851.) As a result, the expert’s opinion was “nothing more than speculation, ” which is not evidence. (Ibid.)
Unlike Ramon, Ochoa and Frank S., the expert in this case did testify that the specific crimes that Cox committed – possession of narcotics for sale and possession of a firearm – were among the types of criminal offenses that the Avalon Ganster Crips was known to participate in. However, we are unaware of any case which has upheld a gang enhancement based solely on the fact that a gang member engaged in crimes that, according to expert testimony, his gang was also known to participate in. Indeed, Ochoa specifically rejected such an argument, stating that “although all gangs regularly commit certain crimes, the fact that an individual gang member commits one of those crimes by himself is not substantial evidence that he did so for the benefit of, at the direction of, or in association with the gang, even if it is the gang’s ‘signature’ crime.” (Ochoa, supra, 179 Cal.App.4th at p. 661, fn. 7; see also People v. Albarran (2007) 149 Cal.App.4th 214, 221, 227 [finding insufficient evidence to support expert conclusion that crime was committed to gain respect of gang members where evidence showed defendant was gang member who committed crimes that, according to expert, his gang was known to commit].)
Despite the lack of any substantive evidence that Cox committed his crimes for the benefit of his gang, the prosecution contends that “analogous” case law supports upholding his gang enhancement. It first cites People v. Ferraez, supra, 112 Cal.App.4th 925, in which the defendant was convicted of possession of rock cocaine for sale and actively assisting a criminal street gang in felonious criminal conduct. (See Penal Code, § 186.22, subd. (a).) The evidence showed that the defendant told the arresting officer that he had acquired permission from the Las Compadres gang to sell drugs in their territory. In addition, the defendant admitted to being a member of the Walnut Street gang, which was friendly with Las Compadres. The prosecution’s gang expert opined that, based on a hypothetical identical to the facts of the case, the defendant intended to sell the drugs for the benefit of the gang, explaining that the proceeds would be used to benefit the gang through the purchase of weapons or narcotics, or as bail for a fellow gang member.
The court upheld the gang conviction, stating that
Undoubtedly, the expert’s testimony alone would not have been sufficient to find the drug offense was gang related. But here it was coupled with other evidence from which the jury could reasonably infer the crime was gang related. Defendant planned to sell the drugs in Las Compadres gang territory. His statements to the arresting officer that he received permission from that gang to sell the drugs at the swap mall and his earlier admissions to other officers that he was a member of Walnut Street, a gang on friendly terms with Las Compadres, also constitute circumstantial evidence of his intent.
(Ferraez, supra, 112 Cal.App.4th at p. 931.) Ramon and Ochoa specifically differentiated Ferraez, noting that, in those cases, the defendant “did not admit that he was acting at the behest of or with the permission of [another gang.]” (Ramon, supra, 175 Cal.App.4th at p. 852; Ochoa, supra, 179 Cal.App.4th at p. 662 [“Defendant did not tell anyone, as the defendant did in Ferraez, that he had special gang permission to commit the carjacking”].) The same is true here – there is no evidence that Cox possessed drugs or his weapon with the permission of a gang. Accordingly, Ferraez is not analogous to the circumstances presented in this case.
The prosecution also argues that the California Supreme Court’s decision in People v. Gardelay (1996), 14 Cal.4th 605, in which the Court affirmed a gang enhancement, supports affirmance here. The evidence in Gardelay showed that the defendant and two companions assaulted a victim who had exited his vehicle in an area controlled by the Family Crip gang. The evidence also showed that all three of the attackers, including defendant, were members of the Family Crip gang. At trial, the prosecution’s gang expert testified that the attack was “a ‘classic’ example of gang-related activity, explaining that criminal street gangs rely on such violent assaults to frighten the residents of an area where the gang members sell drugs, thereby securing the gang’s drug-dealing stronghold.” (Id. at p. 619.) The Supreme Court upheld the defendant’s gang enhancement, concluding that “From this expert testimony... the jury could reasonably conclude that the attack on [the victim]... was committed ‘for the benefit of, at the direction of, or in association with’ that gang.’” (Ibid.)
Gardelay simply illustrates that, in many instances, a jury may reasonably infer that a crime was committed for the benefit of a gang when multiple gang members participated in the underlying criminal act. (See, e.g., People v. Martinez (2008) 158 Cal.App.4th 1324, 1333 [“Here, defendant, an admitted gang member, sporting gang tattoos, actually committed the robbery with a gang confederate”]; People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [“[T]he jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with the fellow gang members”].) As discussed above, in this case, the prosecution provided no evidence that any other gang members participated in Cox’s crimes. Accordingly, Gardelay does not help the prosecution.
In sum, we believe this case falls squarely within the holdings of Frank S., Ramon and Ochoa and reverse the jury’s finding on Cox’s gang allegation. In reaching our ruling, we emphasize that “[b]y definition, ‘substantial evidence’ requires evidence and not mere speculation. In any given case, one “may speculate about any number of scenarios that may have occurred.... A reasonable inference, however, may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.... A finding of fact must be an inference drawn from evidence rather than... a mere speculation as to probabilities without evidence.” (Ramon, supra, 175 Cal.App.4th at p. 851.) In this case, there was no evidence as to how Cox distributed drugs or how he used his firearm. Nor was there any evidence that he sold drugs or possessed firearms with or for other gang members. Therefore, while it is possible Cox was acting for the benefit of the gang rather than for his personal benefit, “a mere possibility is nothing more than speculation. Speculation is not substantial evidence.” (Ibid.)
Indeed, the evidence that Cox intended to act for the benefit of his gang is considerably weaker than the evidence in either Frank S. or Ramon. In Frank S., the defendant, who was a gang member, stated that he needed the knife to protect himself against rival gangs. The fact that the defendant admitted he possessed the weapon with the specific intent to fend off attacks from a rival gang arguably raises an inference that the weapon was possessed for the benefit of or in association with a gang. No similar inferences can be drawn here because there is no substantive evidence as to the manner in which Cox committed his crimes or why he committed them. In Ramon, the defendant was arrested with another gang member in the heart of his gang’s territory. Again, no such facts are present here.
If we affirmed the gang enhancement in this case, we would effectively hold that, as a matter of law, Penal Code section 186.22, subdivision (b)(1) may be applied anytime a single gang member is arrested on a drug or gun crime far outside his gang territory. The language of Penal Code section 186.22(b)(1), which is a specific intent crime, does not permit such an outcome.
Because we reverse and remand for resentencing, we need not reach additional issues Cox has raised in regards to his sentencing. However, for the purposes of remand, we note that the People concede that the court erred in imposing sentence enhancements pursuant to Penal Code section 11370.2 for counts three, four, five, six and eight. Accordingly, the trial court is directed to remedy this conceded error at re-sentencing.
DISPOSITION
The enhancements based on the jury’s finding that Cox violated Penal Code section 186.22, subdivision (b) are vacated. Cox’s conviction is otherwise affirmed and the matter is remanded to the trial court for resentencing consistent with this opinion.
We concur: WOODS, Acting P. J., JACKSON, J.