Filed 3/19/14 P. v. Rector CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v. JEFFREY ALLEN RECTOR, Defendant and Appellant. F064902 (Super. Ct. No. BF136638B)



### OPINION

THE PEOPLE, Plaintiff and Respondent,

v. ADRIAN LYONS, Defendant and Appellant. F065064 (Super. Ct. No. BF136638A)

APPEALS from judgments of the Superior Court of Kern County. Gary T. Friedman, Judge. Sylvia Whatley Beckham, under appo intment by the Court of Appeal, for Defendant and Appellant Jeffrey Allen Rector.2. Michael P. McPartland, under appointmen t by the Court of Appeal, for Defendant and Appellant Adrian Lyons. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorn ey General, Julie A. Hokans and John A. Bachman, Deputy Attorn eys General, for Plaintiff and Respondent.
-ooOoo- In this consolidated ap peal, a jury convicted Jeffrey Allen Rector and Adrian Lyons (collectively, defendants) of various cr imes related to an a ttempted armed robbery
of a taxi cab driver who was shot twice. Th e prosecution also alleged each defendant was an active participant in a criminal stre et gang (Pen. Code, § 186.22, subd. (a)), 1 and that
the crime was committed for the benefit of a criminal street gang ( id., subd. (b)(1)).
The issues in this case primarily involve the criminal street gang findings.
Defendants assert there was insufficient evid ence that (1) the cr ime was committed for the benefit of a criminal street gang, and (2 ) one of the identified gangs met the statutory requirements of a criminal street gang. We find merit to both arguments, requiring reversal of (1) the gang enhancement for bo th defendants, (2) a gun use enhancement for Lyons, and (3) the gang particip ation conviction for Rector. We will vacate the relevant findings, ot herwise affirm the judgment, and remand
the matter to the trial court for the resentencing of Lyons and the preparation of a new abstract of judgment for both defendants.

1 All further statutory references are to the Penal Code unless otherwise stated.3. FACTUAL AND PROC EDURAL SUMMARY The Information Defendants each were charged with atte mpted first degree murder (§§ 664, 187, subd. (a), 189), aggravated mayhem (§ 205), attempted armed robber y (§§ 664, 212.5, subd. (a)), active participation in a criminal street gang (§ 186.22, subd. (a)), possession of a firearm by a felon (former § 12021, subd . (a)(1)), and possession of a loaded firearm in public by a member of a criminal st reet gang (former § 120 31, subd. (a)(2)(C)). The following enhancements and prior c onvictions were alleged against Rector, some of which were not applicable to every count: (1) personal inf liction of great bodily injury (§ 12022 .7), (2) commission of the cr ime for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)), (3) personal discharge of a firearm causing great bodily injury (§ 12022.53, subd. (d)), (4 ) being a principal in a crime during which another principal personally discharged a firearm causing great bodily injury (§ 12022.53, subds. (d), (e )(1)), and (5) one prior prison term enhancement (§ 667.5, subd. (b)). The following enhancements and prior c onvictions were alleged against Lyons, some of which were not applicable to every count: (1) personal inf liction of great bodily injury (§ 12022 .7), (2) commission of the cr ime for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1 )), (3) being a principal in a crime during which another principal personally discharg ed a firearm causing great bodily injury (§ 12022.53, subds. (d), (e)(1 )), and (4) three prior prison term enhancements (§ 667.5, subd. (b)). 2

2 The information also alleged in count s 1, 2 and 3 that Lyons personally discharged a firearm resulting in great bodily inju ry. This enhancement was dismissed by the prosecution.4. Testimony Regarding the Shooting Genaro Alvarado Zamora was a self-emp loyed taxi driver. On the night in question he was at a casino when two men (Rec tor and Lyons) asked for a ride. Zamora ended his card game and met the two men outside . The two men got into the rear seat of
the taxi and Rector directed Zamora to drive them to a nearby intersection. 3 When
Rector directed Zamora to driv e down an alley, Zamora refu sed and stopped on the street. Rector asked what the fare was, and Zamora said it was five dollars. Rector refused to pay the fare and instead demanded Zamora’s money. Zamora refused to give him any money. Rector and Ly ons kept talking and finally Lyons told Zamora to get out of the vehicle. Zamora feared for his life, but he got out of the car. Rect or pulled out a gun and
shot Zamora twice. Zamora stated on furt her examination that he could not remember exactly who had shot him, but he thought it was Rector. After he was shot, Zamora got back insi de the vehicle, pick ed up his telephone, and called emergency services. Zamora heard the gun dry firing, so he drove away.
Bakersfield Police Officer Chris Ward re sponded to the scene of the taxicab and observed what appeared to be two gunshot woun ds on the victim, one in the neck and the
other in the face. Ward also located a blac k head wrap approximate ly 100 to 150 feet from the taxicab. The parties s tipulated the head wrap belong ed to Lyons and it was in his possession on the night of the shooting. Expert Testimony Kerry Tripp was a detective for the City of Inglewood Police Department assigned to the gang intelligence unit. His position required him to monitor all criminal street gangs and members. He also determined which gangs had a rivalry, which gangs may

3 Zamora did not identify either defe ndant by name, but other testimony established to which defendant Zamora was referring. We identify defendants by name to ease the reader’s task.5. have committed a crime, and reviewed reports of crimes to determine if there was a gang
connection. Neighborhood Piru is a criminal street gang in the City of Inglewood affiliated with other Blood criminal street gangs. Th ere are approximately 20 different criminal street gangs in the City of Inglewood that a ffiliate with the Bloods cr iminal street gang. Generally, the Neighborhood Piru criminal street gang is a rival to any Crips criminal street gang. The lone exception involve s the Inglewood Family Bloods, who have formed a truce with the Hoover Crips and the Eight-Tre (or 83) Crips. Because of this alliance, the other Blood gangs in the city (including Neighborho od Piru) have a quasitruce with these Crips gangs. Tripp had had several conversations with Rector. In one conversation Rector admitted being a member of the Neighborhood Piru criminal street gang. Based on this admission, Rector’s gang tattoos, his associati on with other members of the gang, and his regular presence in gang territory, Tripp op ined that Rector was a member of the Neighborhood Piru crimin al street gang. Tripp also testified about the Hoover Crim inals (or Hoover Crips) criminal street gang. This is a very large gang in Los Angele s affiliated with other Crips criminal street gangs. Tripp occasionally had contacted Neighborhood Piru criminal street gang members who had been in the presence of Hoover Criminals gang members. Tripp explained that even though Bloods and Cr ips normally are rivals, they sometimes maintain friendships with relatives or others who are in different gangs. Tripp was not aware of any alliance between the Neighborhood Piru and the Hoover Criminals criminal street gangs. Travis Harless was assigned to the gang unit of the Bakersfield Police Department
and had testified as an expert in only three other cases, all involving criminal street gangs in Kern County.6. Harless had had five to 10 contacts with members of the Hoover Criminals criminal street gang in Kern County. The Hoover Criminals criminal street gang originated in Los Angeles, as did all of th e African-American gangs in Bakersfield. Harless had spoken to one gang member w ho stated that the Hoover Criminals have “kind of a loose alliance between the two ga ngs,” apparently referring to the Bloods. Harless also had traveled to Los Angeles where he spoke with two members of the Neighborhood Crips. During this contact he was told that the Hoover Criminals, Bloods, and a third gang known as the Eight-Tre Gangsters have a thre e-gang alliance to fight the Neighborhood Crips. Harless testified about several predicate crimes of the Hoover Criminals criminal street gang. The first involved Willie Br own, Willie Payne and Dupree Demery. The three were found in possessi on of a large amount of co caine base and marijuana on August 22, 2009. Brown was convicted of possession of coca ine base for sale, which is one of the primary activities of the Hoover Cr iminals and the Bloods. The second crime occurred on September 8, 2007, and again involved Brown. Brown and some other
individuals climbed over a fence and stole marijuana plants. Brown was convicted of grand theft. Brown committed this crime wi th some members of the Bloods criminal street gang. A third crime occurred on Fe bruary 28, 2009, in Los Angeles County.
Based on his conversations with other office rs, Harless testified that Demageo Hall, a
member of the Hoover Criminal s criminal street gang, shot two victims, killing one of them, because he thought they were members of a rival ga ng. Hall was convicted of murder, attempted murder, as well as gang and firearm enhancements. A fourth crime occurred on July 2, 2009, in Los Angeles County. Darren Trotter, a member of the
Hoover Criminals criminal st reet gang, was charged with shooting an individual he believed was a rival gang member. He was found guilty of assault w ith a deadly weapon, as well as gang enhancements.7. Harless identified some of Lyons’s tattoos as being consistent with those of other
members of the Hoover Criminals criminal street gang and as indicating membership in the Hoover Criminals street gang. Two field identification cards from Los Angeles indicated that Lyons admitted being a member of the 94 Hoover Crimin als criminal street gang in 2007 and 2009. Harless also reviewed a booking report from 2007 wherein Lyons admitted membership in the Bloods gang. Based on this information, Harless opine d that Lyons was an active member of the
Hoover Criminals crimin al street gang. Based on Tripp’s testimony and his one conversation with members of the Neighborhood Crips criminal street gang, Harless responded to a hypothetical question that posited the following facts: (1) a crime of attempted robbery that ended with the victim being shot was comm itted in Bakersfield, and (2 ) the crime was committed by a gang member from Los Angeles that was a memb er of the Bloods criminal street gang, along with a gang member from Los Angeles th at was a member of the Hoover Criminals criminal street gang. The prosecutor then asked if the crime was committed for the benefit of, at the direction o f, or in association with eith er the Hoover Criminals or Bloods criminal street gangs. Harless opined the crime would benefit and be in association wi th both the Hoover
Criminals and Bloods criminal street gangs because “they have this alliance that allows
them to commit these crimes together. The robbery is on e of the primary activities of both gangs. [¶] Also committing a shooting or any act of violence is very common within gang culture. Violence itself is used for a number of things for gang members. It’s used for not just offensive or defensive purposes. It’s used to acquire money; it’s used as a form of communication; and it’s us ed as a way to resolv e problems. So by -- also, I’m sorry, it’s also used to gain respect within gang culture. [¶] So by committing a robbery or an attempt[ed] robbery, I think it’s benefiti ng both gang members because they’re going to benefit financ ially and also benefit their gangs. And also by committing8. this shooting it’s beneficial to the gangs because it bolsters their status as gang members
and it solidifies that alliance between these two gangs.” When asked how the two gang members we re associating, Harless replied, “The two gang members are from thes e rival -- or I’m sorry, they ’re from allied gangs. The two of them are associating together as they ’re committing a crime and the association is that they are actively comm itting a crime together.”
Harless admitted that the H oover Criminals criminal st reet gang, to which Lyons belonged (94 Hoover Criminals), was located in Los Angeles. Harless admitted neither the victim nor any of the casino employees who testified suggested either suspect was involved in a gang. When asked to explain the Blood gangs in Los Angeles, Harless stated that the term “Blood” is a generic term used to de scribe a large number of different gangs. Harless admitted that Tripp had a different perspective on Blood gangs than he did because in Inglewood, where Tripp worked, there are 18 diffe rent Blood gangs. Harless
also admitted he was unaware of any single person or group th at controls all of the Blood gangs in Southern California, i.e., those ga ngs operate independently of each other. Harlan Hunter testified as a defense expe rt on criminal street gangs. He agreed that Rector was a gang member. In response to a hypothetical quest ion, he opined this
crime was not committed for the benefit of a crim inal street gang. He observed there was no evidence that the Los Angeles gangs would benefit in any way from this crime. He
also noted that the different criminal street gangs in Los Angeles that share the Hoover Criminals name are independent gangs that do not take direction from any individual or central governing body. He also confirme d there was not an alliance between the 94 Hoover Criminals and the Neighborho od Piru criminal street gangs. The Verdict and Sentencing The jury found Lyons guilty of (1) attempted second degree murder, (2) aggravated mayhem, (3) attempted second de gree robbery, and (4) participation in a9. criminal street gang. In addition, on counts 1 through 3, the jury found true allegations that (1) the crime was committe d for the benefit of a crimin al street gang within the meaning of section 186.22, subdivision (b)(1 ), and (2) Lyons was a principal in the offense and at least one principal intentiona lly discharged a firear m proximately causing great bodily injury within th e meaning of section 12022.53, subdivisions (d) and (e)(1). 4 In a bifurcated trial, the trial court fou nd Lyons had served three prior prison terms pursuant to the provisions of se ction 667.5, subdivision (d). The trial court sentenced Lyons to an aggravated term of nine years for the attempted murder, enhanced by a term of 25 years to life pursuant to section 12022.53, subdivisions (d) and (e)(1), and three one -year terms pursuant to section 667.5, subdivision (b), for a total dete rminate term of 12 years and an indeterminate term of 25 years to life. The sentences on the remain ing counts and enhancements were stayed pursuant to section 654. The jury found Rector guilty of (1) attempted first de gree murder, (2) aggravated mayhem, (3) attempted second degree robbery, (4 ) participation in a criminal street gang, (5) possession of a firearm by a felon, and (6 ) carrying a loaded fi rearm while a member of a criminal street gang. The relevant alle gations found true by the jury were (1) the
crime was committed for the bene fit of a criminal street ga ng within the meaning of section 186.22, subdivision (b)(1), and (2) Rect or personally discharged a firearm causing great bodily injury within the meaning of section 1 2022.53, subdivision (d).

4 The jury also found true an allegation that the crimes we re serious felonies within the meaning of section 1192.7, subdivision (c)(28). We find this allegation curious because section 1192.7 defines those crimes that are serious felonies, which appears to operate as a matter of law and does not requir e a jury finding. Moreover, our review of the jury instructions did not locate any instru ction that would define a serious felony to the jury or guide it in making th is determination. Accordingly, this finding appears to be superfluous.10. The trial court sentenced Rector to an indeterminate term of 15 years to life for attempted murder, enhanced by an indeterminate term of 25 years to life for the section 12022.53, subdivision (d) enhanc ement, for a total indeterminat e term of 40 years to life. The sentences on the remaining counts and e nhancements were stayed pursuant to the provisions of section 654.
DISCUSSION Lyons and Rector raise numerous argumen ts, and each joins the arguments made by the other. Defendants’ primary focus is on th e evidence related to the criminal street gangs and the jury’s findings related to th e gang enhancements. We will address the criminal street gang evidence first and then the remaining contentions. I. Criminal Street Gang Arguments
Defendants assert there was insufficient evidence to support th e finding that the
crime was committed for the benef it of a criminal street gang. Rector also claims there was insufficient evidence the ga ng to which he allegedly be longed (Neighborhood Piru) was a criminal street gang within the meaning of section 186.22. Standard of Review Our review of the sufficiency of the ev idence is deferential. We “‘review the whole record in the light most favorable to the judgment below to determine whether it
discloses substantial evidence -- that is, evidence which is reasonable, credible, and of
solid value -- such that a reasonable trier of fact could find the defe ndant guilty beyond a reasonable doubt.’ [Citation.]” ( People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Superior Court ( Jones ) (1998) 18 Cal.4th 667, 681.) We focus on the whole record, not isolated bits of evidence. ( People v. Slaughter (2002) 27 Cal.4th 1187, 1203.) We presume the existence of every fact the trie r of fact reasonably could deduce from the evidence that supports the judgment. ( People v. Kraft (2000) 23 Cal.4th 978, 1053.) We
will not substitute our evaluations of a witness’s credibility for that of the trier of fact. ( People v. Koontz (2002) 27 Cal.4th 1041, 1078.)11. “The standard of review is the same in cases in which the Pe ople rely mainly on circumstantial evidence. [Citation.] ‘Alt hough it is the duty of the jury to acquit a
defendant if it finds that circ umstantial evidence is susceptib le of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate
court which must be convinced of the defend ant’s guilt beyond a reasonable doubt. “‘If the circumstances reasonably justify the trie r of fact’s findings, the opinion of the reviewing court that the circumstances mi ght also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.’” [Citations.]’ [Citation.] ‘“Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.”’ [Citations.]” ( People v. Stanley (1995) 10 Cal.4th 764, 792-793.) Circumstantial evidence does not directly pr ove a fact. But, if the circumstantial evidence is believed, the jury may infer the truth of the fact in question. (CALCRIM No. 223.) But a reasonable inference may no t be based on conjecture or guesswork. ( People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1416- 1417.) Black’s Law Dictionary
defines an inference as “A conclusion reac hed by considering other facts and deducing a logical consequence from them.” (Black’s Law Dict. (9th ed. 2009) p. 847, col. 2, italics added.) “The strength of an inference may vary widely. In so me circumstances, the preliminary facts may virtually compel the conclusion. In other circumstances, the preliminary facts may minimally support the conclusion. But to constitute an inference, the conclusion must to some degree reasonably and logically follo w from the preliminary facts. If, upon proof of the preliminary facts, the conclusion is mere guesswork, then we refer to it by such word s as speculation, conjecture, surm ise, suspicion, and the like; and it cannot rise to the dignity of an inference. [Citations.]” ( People v. Massie (2006) 142 Cal.App.4th 365, 374.) In other words, f actual findings must be based on inferences drawn from evidence, not speculation as to probabilities or possibilities. ( Sifuentes, at pp. 1416-1417.)12. Furthermore, substantial ev idence is not the same as any evidence, or a mere scintilla of evidence. ( In re Alexander L. (2007) 149 Cal.Ap p.4th 605, 614 ( Alexander
L. ).) To be substantial, the evidence must be reasonable, credible, a nd of such solid value
that a reasonable trier of fact could find a defendant guilty beyond a reasonable doubt. ( People v. Thomas (1992) 2 Cal.4th 489, 514.) Commission of the Crime for the Benefit of a Criminal Street Gang The jury found the crime was committed fo r the benefit of a criminal street gang pursuant to the provisions of section 186.22, subdivision (b). This section provides for enhanced punishment for any fe lony that is “committed 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 crim inal conduct by gang members ....” To find the enhancement true, the jury must find (1) th e crime was committed for the be nefit of any criminal street gang, or at the direction of any criminal stre et gang, or in association with any criminal street gang, and (2) the crime was committed with the specific intent to promote the criminal street gang, or furthe r any criminal street gang, or assist any criminal conduct by gang members.
The issue here is the fi rst element -- whether the cr ime was committed for the benefit of any criminal street gang, or at the direction of any criminal street gang, or in association with any criminal street gang. The prosecution theorized the crime was
committed for the benefit of a cr iminal street gang or in a ssociation with any criminal street gang, eschewing the theo ry the crime was commi tted at the direction of a criminal street gang. Lyons and Rector argue the test imony on this issue was insufficient to prove
the first element of the enhan cement, regardless of the theory relied on by the People. The prosecution relied on the testimony of Harless and Trip p to support its theory. To analyze this testimony, it is necessary to review basic tenets governing expert testimony. Well-established law in California permits an expert to offer an opinion only if (1) the opinion is “Related to a subject that is sufficiently be yond common experience13. that the opinion of an expert would assist the trier of fact,” and (2) the opinion is “Based on matter (including his special knowledge, sk ill, experience, training, and education) perceived by or personally k nown to the witness or made k nown to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates ....” (Evid. Code, § 801.) Such testimony is permitted because the law favors the admission of evidence that makes comprehensible and lo gical that which is otherwise inexplicable and incredible. ( People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551.) “Expert testimony may also be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. [C itations.] Of course, an y material that forms the basis of an expert’s opinion testimony must be reliable. [Citation.] For ‘the law does not accord to the expert’s opinion the same degr ee of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert’s opinion is no better
than the facts on which it is based.’ [Citation.]” ( People v. Gardeley (1996) 14 Cal.4th 605, 618 ( Gardeley ).) Not only is an expert witness limited to testifying to subjects beyond common experience, the law places other limits on expe rt testimony. Experts may not testify to legal conclusions. ( People v. Jones (2013) 57 Cal.4th 899, 950 .) Nor may he or she base an opinion on surmise, guesses, or conjecture. ( Id . at p. 951; People v. Vang (2011) 52 Cal.4th 1038, 1046.) Expert testimony th at rests on assumptions, conjecture, and speculation “has little or no probative value, bears the pote ntial to mislead the jury into accepting the unsupported assumption and drawi ng from it unwarranted conclusions, and thus cannot significantly ‘help the trier of fa ct evaluate the issues it must decide.’ [Citation.]” ( People v. Moore (2011) 51 Cal.4th 386, 406.) “That an event could have happened ... does not by itself support a deduc tion or inference it did happen.... Jurors
should not be invited to bu ild narrative theories of a ... crime on speculation.” ( Ibid .)14. Accordingly, expert testimony based on surmis e or conjecture is without foundation and is not substantial evidence. ( Alexander L., supra, 149 Cal.App.4th

. at pp. 612-613.) Similarly, expert testimony which is conclu sionary is not substantial evidence. ( Id . at p. 612.) We now apply these principles to the te stimony of Tripp and Ha rless. Tripp, an experienced detective (26 years as a peace o fficer) and gang investigator (11 years) with the City of Inglewood Police De partment, testified the Neighbor hood Piru criminal street gang is affiliated with other Blood criminal street gangs. Typically, Bloods and Crips are rivals, and the Neighborhood Pi ru criminal street gang is a rival to any Crips criminal street gang. The one exception of whic h Tripp was aware i nvolved the Inglewood Family Bloods criminal street gang. This gang formed a truce or alliance with the Hoover Criminals (or Crips) a nd the Eight-Tre Gangster Crips criminal street gangs in an effort to fight the Neighborhood Crips crim inal street gang, which is a huge criminal street gang in the area. Tripp did not know of any alliance between the Neighborh ood Piru criminal street gang and the Hoover Criminals criminal street gang or the 94 Hoover Criminals criminal street gang. Tripp did not testify about the elements of the section 186.22, subdivision (b) enhancement. The only testimony supporting the sec tion 186.22, subdivision (b) enhancement was provided by Harless. We begin by no ting Harless’s minimal qualifications. He had been a peace officer for four years and with the gang unit only two years. He had the requisite training to qualify as an expert w itness on Bakersfield gangs, but his experience with Los Angeles gangs was nonexistent.
Harless had had five to 10 contacts with members of the Hoover Criminals criminal street gang in the Bakersfield ar ea. According to on e source, the Hoover Criminals gang members in Bakersfield ha d a loose alliance with the Bloods in Bakersfield. He also made one trip to Lo s Angeles approximately three months before15. the trial. He had a short meeting with Tr ipp and then went on pa trol with other gang officers and made two contacts with “gang members ... in Inglewood and the area surrounding Inglewood,” including one Blood s member but no members of the Hoover Criminals criminal street gang. He also spoke with two members of the Neighborhood Crips, which he described as the primary rival of the Hoover Criminals street gang and the Bloods. These gang members confirmed a three-gang alliance between the Eight-Tre Gangster Crips, Hoover Criminals, and the Bloods to fight agai nst the Neighborhood Crips. Harless’s description of an alliance betw een the Hoover Crimin als and Bloods is an exaggeration. Our conclusion is based on two facts to which both Harless and Tripp testified. First, the term “B lood” is a generic term that refers to a large number of different gangs, and not to a specific gang. Similarly, the Hoove r Criminals criminal street gang is a very large gang with numer ous subsets. While the alliance to which Tripp testified involved three very specific gangs, the allian ce to which Harless testified was so general as to be meaningless. We also point out that it is necessary to examine Harless’s testimony closely to
avoid confusion and unfounded generalizations. He testifie d to a meeting in Inglewood involving a member of the Ne ighborhood Crips and being told of an alliance between the Hoover Criminals, Bloods, and Eight-Tre Gangs ter Crips criminal street gangs. This would appear to be a rather large alliance; but, upon further questi oning, Harless referred to the alliance by the same phrase (“Movin,’ Groovin,’ and Sowoopin’”) used by Tripp when referring to a specific alliance betw een the Inglewood Family Bloods, Hoover Criminals, and the Eight-Tre Ga ngster Crips. Accordingly, it is clear the alliance to
which Harless testified based on his convers ation with a member of the Neighborhood Crips criminal street gang did not involve the Bloods in general, bu t instead involved the Inglewood Family Bloods criminal street gang in particular.16. In another part of his testimony, Harle ss again referred to an alliance between the
Hoover Criminals criminal stre et gang and the Bloods criminal street gang. This portion of Harless’s testimony brings us to th e second reason why we conclude Harless exaggerated his testimony about this suppos ed “loose alliance.” Harless based this portion of his testimony on a conversation he had with a Bakersfield gang member. While such an alliance may exist in Bakers field, the statement of a Bakersfield gang member cannot support an inference, conclusi on, or opinion that such an alliance also exists in Los Angeles between different criminal street gangs. Finally, we note Harless’s opinion was directly contradict ed by Tripp, who testified that he was not aware of any such alliance. Tripp, an experienced police officer working in the home town of the Neighborhood Piru crim inal street gang, had had numerous contacts with a member of that gang on a weekly basis. Tripp’s opinion was formed by these numerous contac ts, as well as his constant review of police reports filed by the Inglewood Police Department. Harless, on the other hand, had no experience with any Los Angeles criminal street gang. Ob viously, the material underlying Harless’s opinion on this issue was not reliable and was not the type of material on which a competent expert would rely. Another difficulty with Harl ess’s testimony is that, even if we were to assume
there was a loose alliance between some cr iminal street gangs, Harless’s general testimony did not support a more specific in ference that there was a loose alliance between the 94 Hoover Criminals and the Neig hborhood Piru criminal street gangs, an inference on which the prosecution relied. Mo reover, it would be unwise to make this inference when Tripp, the pros ecution’s expert witness, who, as we have explained, had far more experience with Los Angeles gangs than Harless, directly contradicted the
existence of such an alliance. It is clear Harless’s opini on that there existed a loose
alliance between the 94 Hoover Criminals and Neighborhood Piru criminal street gangs was unsupported by any evidence, let alone subs tantial evidence.17. We acknowledge that Harless did not spec ifically testify a loose alliance existed between the 94 Hoover Criminals and Neighborhood Piru criminal street gangs. Such an assertion, however, was implicit in Harle ss’s answer to the hy pothetical question, discussed below, which provided the only evidence to support the section 186.22, subdivision (b) enhancement.
The loose alliance between the 94 Hoover Criminals an d the Neighborhood Piru criminal street gangs formed the basis for Harless’s testimony abou t the section 186.22, subdivision (b) enhancement. That no such alliance existed undermines the remainder of Harless’s testimony on the issu e. Nonetheless, we procee d to the hypothetical question that provided the only evidence to suppor t the enhancement. In response to the pros ecution’s hypothetical question, Harless opined the crime
benefited the “Blood and Hoover” criminal stre et gangs because of this loose alliance. Although it is difficult to follow his reasoning, it appears Ha rless believed that because of this loose alliance the two perpetrators of the hypothetical cr ime were permitted to commit crimes together, ther eby strengthening the alliance. Because, as we have demonstrated, there was no credible evid ence of a loose alliance between the Neighborhood Piru and the 94 Hoover Crim inals criminal street gangs, there is no foundation for the opinion that it was permis sible for these two ga ng members to commit this robbery together. It also was impossible to strengthen an alliance that did not exist. Like the proverbial house built on sand ( Gardeley, supra, 14 Cal.4th at p. 618), the lack of foundation for Harless’s opinion causes the remainder of his conclusions to crumble. Harless also opined there would be a bene fit to the criminal street gangs because the gang and the gang members would earn respect in the gang culture from using violence. Once again, there are no facts to support the theory. Th is crime was committed in Bakersfield. Lyons and Rector were members of Los Angeles criminal street gangs.
No witness testified that eitherLyons or Rector ever identi fied himself as a gang member18. or made any assertion the crime was related to a criminal street gang. Instead, Zamora testified he did not know the two pe rpetrators were gang members. Thus, it is pure speculation to suggest that somehow know ledge of the crime would be transferred to Los Angeles and somehow gang members would know the crime was committed by gang members in general— and Lyons and Rector in particular. Indeed, it would appear the onl y way this type of informa tion could be relayed to Los Angeles was if Lyons and/or Rector informed other gang members of their exploits. While undoubtedly such communication could oc cur, to suggest it woul d do so in this case is pure speculation. The speculative nature of Harless’ s testimony is obvious since Lyons and Rector did not commit the crime in Los Angeles, never identified themselves as gang members, and had a strong motive (avoiding detection and embarrassment) for not telling anyone they had failed to rob a taxi cab driver, even though they were armed
and he was not. Harless further opined th e crime was committed for th e benefit of the criminal street gang because the criminal street gang would benefit financia lly from a successful robbery. Once again, there is no factual support for this assertion. Harless was speculating that if the robber y was successful, then Lyons and/or Rector would have shared the proceeds of th e robbery with one or bo th of the gangs. Ther e is no evidence in the record to support this theory, and, considering the crime was committed in Bakersfield, it seems likely that neither knowledge about nor the proceeds from the robbery would have been shared with anyone in Los Angeles. In fact, the prosecution theorized that Lyons needed the money from the robb ery to buy a bus ticket to Los Angeles so he could meet with his parole officer. That Lyons ne eded the money for a personal reason militates against the theory he would have shared th e proceeds with the gang, especially since he had no way of knowing how much would be obtained in a successful robbery.19. Harless also opined the crime would be nefit a criminal street gang because it would permit Lyons to make a meeting with hi s parole officer and thus remain out of custody and available to perform gang-relate d tasks. This opinion ignores one fact. Lyons was staying in Bakersfield, and the 94 Hoover Criminals crimin al street gang is based in Los Angeles. While Harless testif ied some members of the Hoover Criminals criminal street gang moved to Bakersfield ( not necessarily members of the 94 Hoover Criminals criminal street gang), there was no evidence to suggest that Lyons had any contact with these other gang members. It is clear the 94 Hoover Criminals criminal street gang would not benefit if Lyons lived in Bakersfield. And to suggest he was going
to return to live in Los Angeles, or was starting a “bra nch” gang in Bakersfield, is pure speculation. Nothing in the record supports either assertion.
Nor was there substantial evidence the crime was committed in association with a criminal street gang. There was substantial ev idence to support the ju ry’s conclusion that Lyons and Rector committed th e robbery together. Noth ing more than Harless’s speculation, however, supported the jury’s finding that the crim e was committed in association with a criminal street gang. It appears Harless opined the crime was
committed in association with a criminal street gang be cause of the loose alliance discussed above and the strengthening of the alliance as a result of the commission of a
violent crime. Since there was no credible evidence of an allianc e, Harless’s opinion was conjecture and not substantial evidence. Nor was there any other evidence in the record to support th e prosecution’s theory
that the crime was committed in association w ith a criminal street gang. The prosecutor argued in closing remarks that the jury must find the crim e was committed in association with a criminal street gang because both Lyon s and Rector were gang members. This argument, however, misconstrues the statute, which requires the crime be committed in
association with any criminal street gang , not other members of any criminal street gang. (§ 186.22, subd. (b).) While many crimes ch arging a section 186.22, subdivision (b)20. enhancement involve mo re than one member from the same criminal street gang, this crime was committed by two perp etrators who belonged to different criminal street gangs. This distinction required the prosec ution to present eviden ce that the crime was
committed in association with either the 94 Hoover Crimin als or Neighborhood Piru criminal street gangs. Since the prosecu tion’s only evidence on this issue was the speculation of Harless, the prosecution failed to carry its burden of proof. Both Harless and Tripp acknowledged that simply because a crime is committed by gang members does not mean the crime is ga ng related. This concession means that
there must be some ev idence tying the crime to a gang ot her than the mere commission of the crime. The only ev idence in the record to support the theory that this crime was
committed in association with or for the benefit of any crimin al street gang was Harless’s opinion. Harless’s opinion was ill-informed a nd speculative and thus was not substantial evidence to support the enhan cement. Accordingly, the tr ue finding that the crime was committed within the meaning of the section 186.22, subdi vision (b) enhancement must
be vacated. Neighborhood Piru Cr iminal Street Gang Rector, in an argument jo ined by Lyons, contends ther e was insuffici ent evidence to establish that the Neighbor hood Piru was a criminal streetgang within the meaning of
section 186.22. Two subdivisions of this section define a criminal street gang. Subdivision (f) defines a criminal street gang as (1) “any ongoing organization, association, or group of three or more person s, whether formal or informal,” (2) “having as one of its primary activities the commission of one or more of the criminal acts [listed in subdivision (e)],” (3) “having a co mmon name or common identifying sign or symbol,” and (4) “whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” Subdi vision (e) defines a pattern of criminal gang activity as “the commission o f, attempted commission of, conspiracy to commit, or
solicitation of ... or conviction of two or more of the followi ng offenses, provided at least21. one of these offenses occurred af ter the effective date of the chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate o ccasions, or by two or more persons ....” The prosecution was required to establish each of these four elements to support the conviction for active participa tion in a criminal street gang. 5 Defendants argue that the evidence presented by the pr osecution did not establish th e primary activity of either
the 94 Hoover Criminals or the Neighborhood Piru criminal street gang was one or more of the listed crimes. Once again, we turn to the testimony of the expert witnesses to
resolve this issue. Tripp testified the Neighborhood Piru cr iminal street gang committed murders, shootings, drive-by shootings, robberies, na rcotics possession and transportation, and deadly weapons possession and transportation. He also testified about two predicate offenses -- one involving a murder and robbery conviction by a member of the Neighborhood Piru criminal st reet gang and the second in volving a murder conviction by a different member of the Neighborho od Piru criminal street gang. This evidence is inadequa te to establish that the Ne ighborhood Piru group meets the statutory requirements of a criminal stre et gang. Tripp provided the only information presented by the prosecution to establish that the Neighborhood Piru group was a criminal street gang. Tripp testified that the Neighborhood Pi ru members admitted committing various offenses. Tripp also tes tified to two crimes intended to be the predicate offenses for the group, which were two murders. Tripp did not testify that any of these crimes was one of the primary activities of the group. The People appear to make two arguments to overcome the abse nce of evidence.

5 The prosecution also was required to prov e these elements to support the section 186.22, subdivision (b) enhancement. We ha ve concluded, however, that there was not substantial evidence to support the true fi nding on this enhancement for unrelated
reasons.22. First, the People point to the predicate crimes and the testimony about other crimes committed by members of the Neighborhood Piru group and suggest we should infer that these were primary activities of the Neig hborhood Piru group. Section 186.22, subdivision (f) specifically states that a group is a criminal st reet gang only if the group’s members commit “as one of its primary activ ities” the commission of the enumerated
criminal acts. That some members of th e group commit the enumerated acts does not establish or permit an inference that commi tting these crimes is one of the primary activities of the group. From this record, we do not kno w if the identified crimes occurred only occasionally, regul arly, or on a single occasion. The inference suggested by the People would be based on speculation. Second, the People refer to a statement made by Harless that selling cocaine base is one of the primary activ ities of both the Hoover Crimin als and the Bloods. This statement was far too vague to meet the Pe ople’s burden of provin g beyond a reasonable doubt that one of the Neighbor hood Piru’s primary activities is selling cocaine base. The record reflects that Harless was referring to a gang member in Bakersfield who apparently was a member of bo th the Hoover Criminals and some other criminal street gang that was affiliated with the Bloods cr iminal gangs when he made the comment. The Neighborhood Piru group is from Inglewood, not Bakersfield, and there was no evidence to suggest this group had a presence in Kern County. Also, Tripp and Harless testified there is no criminal street gang called the Bloods, but instead there are many different gangs th at fall within the “Blood” umbrella. To suggest that Harless’s offhand comment about the primary activity of some unidentified Bloods-related criminal street gang was proof beyond a reasonable doubt of the primary activities of the Neighborhood Pi ru group is unreasonable. Harless’s generalizations were insufficient to establish proof beyond a reasonable doubt. Simply stated, the prosecution failed to elicit evid ence about this element of its case. This failure precludes23. any conviction based on the assertion that the Neighborhood Piru group was a criminal street gang, including Rector’s conviction for participation in a criminal street gang.
Harless also testified about the Hoover Criminals criminal street gang. He testified the primary activities of the Hoover Criminals criminal stre et gang were various
crimes that are enumerated in section 186.22, subdivis ion (e). He identified two predicate offenses for the Hoov er Criminals criminal street gang. The first occurred on August 22, 2009, and involv ed an arrest of a HooverCriminals gang member for possession of cocaine base for sa le. Harless described this as a primary activity “of the
Hoovers and the Bloods.” Th e second occurred on September 8, 2007, and involved a grand theft by a Hoover Criminals gang memb er in the presence of two members of a Bloods gang. Harless testified the primar y activity of the Hoover Criminals criminal street gang was murder, robbery, theft-rela ted crimes, weapons possession, and narcotic sales. A third crime occurred on February 28, 2009, where a me mber of the Hoover Criminals criminal street gang was convicted of murder and attempted murder. A fourth crime occurred on July 2, 2009 , where a member of the Hoove r Criminals criminal street gang was convicted of assault with a deadly weapon in a gang-related shooting. Thus, there was testimony about each of the se ction 186.22, subdivision (f) elements. Defendants argue that Harless failed to establish the foundation for his testimony and assert his testimony was directed at th e Kern County Hoover Criminals criminal street gang, not the 94 Hoover Criminals cr iminal street gang from Los Angeles. Harless testified about his training and experience and his contacts (five to 10)
with members of the Hoover Criminals criminal street ga ng in Kern County. Harless explained the Hoover Criminals criminal st reet gang originated in Los Angeles and migrated to Bakersfield. He testified to co ntacts he had in Kern C ounty with members of
the Hoover Criminals criminal street gang, in particular tw o separate contacts wherein a member of the gang provided information a bout the gang. He also discussed crimes24. committed by other members of the Hoover Crimin als criminal street gang, some in Kern County and others in th e Los Angeles area. While Harless lacked the experience of mo st gang officers, and, in particular, any significant experience with the Los Angeles-ba sed gangs, we conclude his limited Kern County contacts with members of the Hoover Criminals cr iminal street gang provided the minimum qualifications to opine on the Hoover Criminals criminal street gang in this case. Moreover, because the r ecord does not demonstrate th e Hoover Criminals criminal street gang in Kern County is a separate cr iminal street gang from the Hoover Criminals criminal street gangs in Los Angeles, Harl ess’s qualifications exte nd to the 94 Hoover Criminals criminal street gang located in Los Angeles. Because Harless was minimally qualified, and there was a minimal foundation for his opinions, there was sufficient evidence to establish the 94 Hoove r Criminals criminal street gang met the requirements of section 186.22, subdivision (f). Denial of Motion to Bifurcate Prior to trial, the trial court denied defe ndants’ motion to bifurcate all of the gangrelated charges and enhancements from the shooting related crimes . Defendants argued the gang evidence in this case was so weak, and gang evidence in general was so prejudicial, that the gang-related issues s hould be bifurcated. Defendants contend the trial court erred in denying the motion. 6 Section 954 permits the tria l court to bifurcate different offenses or counts if required by the interests of justice. A tria l court has discretion wh en ruling on such a motion (§ 954), and on appe al an abuse of discretion must be demonstrated. ( People v.
Thomas (2012) 53 Cal.4th 771, 798.) “In order to establish an abuse of discretion,
defendant must make a ‘clear show ing of prejudice.’ [Citation.]” ( Ibid .)

6 The People argue defendants should have made a motion to sever the charges, and not a motion to bifurcate. We need not address this question to resolve this issue.25. It is unnecessary to address the question of whether the motion should have been granted because, even if we were to assume the trial court ruled incorrectly, defendants cannot establish they suffered any prejudice. Defendants argue the inherent prejudice that occurred when they we re accused of being gang members resulted in their convictions. We disagree. The evidence unequivocally established that Zamora was shot by a firearm and seriously wounded during an attempted robbery. Zamora consistently told police that he picked up the perpetra tors at the casino and they demand ed his money. When he refused they threatened to kill him, and when he continued to refuse one of the perpetrators shot him. That the perpetrators were armed w ith a firearm and threat ened to kill Zamora overwhelmingly suggests the perpetrators inte nded to kill the victim . Accordingly, the only issue was the identity of the perpetrators. The evidence of identity was very strong. The victim identified both defendants at
trial. It is true that before trial the victim was not able to identif y either defendant in a photo lineup, and he made statements to th e police indicating it was dark and he might not be able to identify the perpetrators. Defendants, however, were identified by a security guard from the casino, on video su rveillance from the casino, and Lyons’s head wrap was located at the scene of the shooting. Moreover, R ector’s appearance was very distinctive because a portion of his hair was white.
Because the evidence that defendants were the perpet rators of the shooting was overwhelming, defendants cannot establish any prejudice as a result of the trial court’s denial of their motion to bifurcate the gang crimes and enhancements. II. Rector’s Remaining Arguments Insufficient Evidence Rector Shot the Victim
Rector claims there was in sufficient evidence he was th e perpetrator who shot the victim. This argument is based on the pr emise that Zamora’s trial testimony was equivocal and t hus did not constitute s ubstantial evidence.26. Rector is correct that Zamora’s tria l testimony was equivocal. Zamora initially described the perpetrators as two Black men in their mid-20’s. He then identified Rector and Lyons as the two perpetrato rs. Zamora testified that Rector was sitting in the rear seat behind the driver and gave directions to their destinati on. Zamora testified Rector demanded his money and then sh ot him when he refused the demand. Shortly thereafter, the trial court attempted to clarify a portion of Zamora’s test imony by asking who had shot him, and Zamora res ponded, “Exactly, I don’t remember. Exactly, I don’t remember. I think, but I don’t remember ex actly.” The prosecutor next asked if any money was taken that night, and Zamora replied “The truth is I don’t know because I didn’t even know what happened.”
On cross-examination Zamora testified that he would “like to say that [he] remember[ed] everything” that happened that night, although a few minutes later Zamora admitted he did not remember everything. He later testified that he thought his memory
was a little better at trial rather than when the incident occurred. Police officers testified that shortly af ter the shooting Zamora was shown a photo lineup that included both Rector and Lyons. Zamora was not able to identify either
defendant. While this testimony was inconclusive, Zamora’s trial testimony was not the only evidence identifying Rector as the shooter. A recording of an interview (the second interview) between Zamora and investigating officers was play ed for the jury . In this interview, Zamora described one of the perpet rators as having two colors in his hair. Lyons was wearing a head covering at the tim e, so the person who had two colors in his
hair was Rector. Zamora also told officers that one of the perpetrators was a little taller than the other perpetrator. Ot her evidence established that Rector was several inches taller than Lyons. This distinction is impor tant because Zamora repeatedly referred to one of the two perpetrators as the taller man in this interview.27. Zamora told officers that the taller man (Rector) did mo st of the talking in the taxicab. When they arrived at the destination, Rector and Zamora got out of the taxicab.
That is when Rector demanded Zamora’s mo ney. Rector shot Zamora after Zamora refused to give him any money. Defense counsel was able to dissect the recorded interview and create some ambiguity as to wh ether it was the taller or shorter perpetrator who shot Zamora, although it would appe ar Zamora was referring to the taller perpetrator. The final piece of evidence identifying Rect or as the perpetrator who shot Zamora was found in another interview (the first in terview) between officers and Zamora, which
was not recorded. The same officer conducted both interviews and cl arified that in the
first interview Zamora identif ied the shooter as the taller of the two perpetrators. While Zamora’s trial testimony was not su fficient evidence to find Rector was the perpetrator who shot Zamora, we review the entire record to determine if substantial evidence supports the finding. The inform ation provided by Zamora in his two statements to the police provid ed evidence that was reasona ble, credible, and of solid value to support the jury’s finding. The reco rd establishes that Rector was taller than Lyons, and the shooter was described as th e taller of the two individuals. This information, when co mbined with the security footage from the casino, and Rector’s distinctive hairstyle, provided substantial ev idence that Rector shot Zamora. Lesser Included Offense Rector’s final argument is that his convic tion for active participation in a criminal street gang (§ 186.22, subd. (a), count 4) is a lesser included offense to his conviction for carrying a firearm while an active participant in a criminal street gang (former § 12031, subd. (a)(2)(C), count 6). Th e People concede that two cas es compel this result -- People
v. Robles (2000) 23 Cal.4th 1106, 1115 [to prove a violation of former § 12031, subd. (a)(2)(C) People had to prove violation of § 18 6.22, subd. (a)] and People v. Flores (2005) 129 Cal.App.4th 174, 184 [violation of § 186.22, subd. (a) necessarily included in28. a former § 12031, subd. (a)(2 )(C) conviction]. A ccordingly, the conviction for violating section 186.22, subdivision (a) must be reversed. 7
DISPOSITION The jury’s finding that the crime was co mmitted in violation of section 186.22, subdivision (b)(1), as allege d in count 1 (attempted mu rder), count 2 (aggravated mayhem), and count 3 (attempted second de gree robbery), is vacated. Rector’s conviction for active participa tion in a criminal street gang is reversed. The jury’s finding that Lyons violated section 12022.53, subdivisions (d) and (e)(1) is vacated. The judgment is otherwise affirmed. The ma tter is remanded to the trial court for resentencing of Lyons and to pr epare new abstracts of judgment. 8

_____________________ CORNELL, J.

WE CONCUR:

_____________________ HILL, P.J.

_____________________ LEVY, J.

7 This conclusion also is compelled by the pr osecution’s failure to prove all of the elements to establish that the Neighborhood Pi ru group was a criminal street gang within the meaning of section 186.22.
8 We also note the abstracts of judgment for Rector and Lyon s incorrectly state defendants were convicted of first degree robb ery. The jury found each defendant guilty of second degree robbery. Th is error also should be co rrected in the trial court.