1 Filed 2 / 14 / 22 In re G.A. CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re G.A., a Person Coming Under the Juvenile Court Law

. 2d Juv. No. B307822 (Super. Ct. No. VJ46827) (Los Angeles County)

THE PEOPLE,

Plaintiff and Respondent,

v.

G.A.,

Defendant and Appellant.

A juvenile court found that G.A

. committed simple assault (Pen. Code, § 240) 1 and that the assau lt was committed in
association with a criminal street gang (§ 186 .22 )

. We reverse the gang enhancement. In all other respects , we affirm.

1 All statutory references are to the Pen al Code.2 FACTS
Assault On February 16, 2020, Anthony Romo and his wife Priscilla Ocedueda were visiting a deceased loved on e at the Resurrection Cemetery in Los Angeles. Romo and his wife we nt to use the
restrooms. Ocedue da went inside, but Romo waited outside because the men’s room was occupied. Three young men, G.A.,
Jose

, and Jorge, were also outside. The three young me n were members of the Colonia Flores gang. As Romo was waiting, a verbal confrontation occurred between Romo and the young men

. One of the men asked Rom o “if [he] was from anywhere.” The attitude of the men was not friendly. Romo attempted to deescalat e the confrontation by replying he was not from anywhere. One of the men asked Romo what he was looking at. Romo said he was not looking at anything. One of the men hit Romo in the face. The other two tried to hit him, but he was able to defend himself

. Romo ran to a grass area. He turned around and hea r d a gunshot . He saw one of the men holding a handgun. Romo was shot in the left front hip. The men r an to a car and left.
Oced ueda called 911.
Police apprehended G.A. , Jose

, and Jorge near the

cem etery. They brought Oced u ed a to the suspects for a field
show

- up. She identified the three men as being in a fight with
Romo.
Th e police placed G.A. and Jose in a patrol car with an audio recorder. A recording of G.A. and Jose talking to each
other was played in c o urt: “[Jose]: ... I turned to shoot three times though. I did a
double action.3 “ [G.A.]: You got him. [ “ Jose]: I got h im, I know I got him. I know I got him, nigga, I know that. I’m not saying that.

“ [G.A.]: I know, I know you didn’t ti l they said it. Y ou didn’t know though, yourself , you didn’t know yourself

.

“ [Jose]: Fool, fool, he ran [ unintelligible ]. I shot, shot a
double action , dude, it was pop, pop. It w a s like fast as fuck.”
Inve s tigation G.A., Jose, and Jorge were placed in the same booking room. Jose asked Detective Derrick Crenshaw what the charges against them were. Crenshaw said attempted murder. Jose asked if that would give him good “street cr e d.” Jose said Romo got what he deserved. He said Romo was “mad doggi ng” him and
G.A. and that is what started the fight. G.A. admitted he punched Romo in the face. Jose admitted he shot at Romo twice. Gang Evidence
Th e police found Colonia Flores graffiti inside the men’s
bathroom at the cemetery

. Sheriff’s Investigato r Frank Quintana testified as a gang expert. He said that G.A. is an active member in the Colonia Flores gang, as are Jose and Jorge. In the audio recording fr om the patrol car, the speaker is giving praise to Colonia Flores for
the act of violence . Gan g members build status by committing
blatant acts of violence and by challenging others, such as by asking them where they are from. Ba s ed on a hypothetical taken from the evidence, Quintana opined the crimes were committed for the benefit of, in associat ion with, and at the direction of the Colonia Flores gang.4 The People introduced evidence of only one pre dicate
offense. William M. was convicted of violating section 245, subdivision (a)(1). Defense A gang expert testified that the crimes were spontane ous acts and were not committed for the benefit of or in association with a street gang.
DISCUSSION
Substantial Evidence G.A. contends the gang enhancement is not supported by
substantial evidence. At the time of trial, s ection 186

. 22

, subdivision (d) provided
a sentence enhancement for “ 

### [a] ny person who i s convicted of a public offense punishable as a felony or a misdemeanor, which is committed for the benefit of, at the direction of, or in association with, a ny criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members

. . . . 

### ” (Stats. 2021, ch. 699, § 

### 3.)
To constitute a “criminal street gang,” members of an ongoing organization, association, or group must engage in a “pattern of criminal gang a ctivity.” ( Former § 

### 186.22, subd. (f ) .)

Former section 186.22, subdivision (e) provided: “As used in this chapter, ‘pattern of criminal gang activity’ means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and t he offenses were committed on separate occasions, or by two or more persons.”5 

### Violation of section 240 is not liste d as a predicate offense.
The P eople proved only one predicate offense at trial. Because section 186.22 requires proof of two predicate offenses, the
P eople concede that the gang enhancement is not supported by
substantial evidence and must be rever s ed.
The P eople further concede that because the enhancement is not supported by s ubstantial evidence, the double

- jeopardy
clause of the Fifth Amendment bars retrial. ( People v. Pierce (1979) 24 Cal.3d 199, 2 09

- 210.)

DISPOSITION
The gang enhancement pursuant to section 186.22 is reversed. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.

GILBERT, P. J.
We concur:

PERREN, J.

TANGEMAN, J.6 Kevin L. Brown, John C. Lawson II, Judge s

Superior Court County of Los Angeles

______________________________

Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, At torney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.