Filed 8/31/16 P. v. Delgado CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN CARLOS DELGADO,

Defendant and Appellant.

 B261252

 (Los Angeles County

 Super. Ct. No. BA416608)

APPEAL from a judgment of the Superior Court of Los Angeles County.

Upinder S. Kalra, Judge. Affirmed in part, reversed in part, and remanded with 

directions.

Eric Cioffi, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson, 

Supervising Deputy Attorney General, and Viet H. Nguyen, Deputy Attorney General, for 

Plaintiff and Respondent.

_________________________________
2

Juan Carlos Delgado appeals from the judgment entered following a jury trial in 

which he was convicted of one count of assault with a semiautomatic firearm in violation 

of Penal Code1 section 245, subdivision (b) (count 2), and one count of felon in 

possession of a firearm in violation of section 29800, subdivision (a)(1) (count 3).

2 The 

jury found true gang and personal firearm use allegations as to the assault. (§§ 186.22, 

subd. (b)(1); 12022.5.) The trial court found true the allegation that appellant suffered a 

prior serious felony conviction that qualified as a strike within the meaning of the Three 

Strikes law. (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d); 667, subd. (a)(1).) The 

court sentenced appellant to an aggregate term of 26 years 4 months in state prison.

3

Appellant contends: (1) The true finding on the gang enhancement must be 

reversed because it was based on improperly admitted statements regarding gang 

affiliation that appellant made during booking; (2) Substantial evidence does not support 

the true finding on the gang enhancement, requiring reversal; (3) The trial court erred in 

imposing sentencing enhancements under both sections 186.22, subdivision (b)(1)(C) and 

12022.5. We agree that the gang enhancement allegation lacks substantial evidentiary 

support and reverse that finding. In all other respects, we affirm.

FACTUAL BACKGROUND

September 23, 2013

Approximately 10:00 p.m. on September 23, 2013, Elias Paxtor and Juana Barrera 

were sitting in Paxtor’s car, parked in the driveway of Barrera’s home near the 

 

1 Undesignated statutory references are to the Penal Code.

2 The jury acquitted appellant on count 1, attempted second degree robbery. 

(§§ 664/211.) 

3 The sentence consisted of the low term of three years on count 2, doubled to six 

years for the prior strike conviction (§ 667, subd. (e)(1)), plus a consecutive term of four 

years for the personal firearm use enhancement (§ 12022.5), plus ten years for the gang 

enhancement (§ 186.22, subd. (b)(1)(C)), plus five years for the prior serious felony 

conviction enhancement (§ 667, subd. (a)(1)). On count 3, the court sentenced appellant 

to a consecutive term of eight months, doubled for the prior strike conviction. 
3

intersection of Arapahoe and Washington west of downtown Los Angeles. Paxtor, who 

was sitting in the driver’s seat, had turned off the car’s engine and headlights and had 

rolled down the driver’s side window. 

Appellant and another person rode up to the car on bicycles. Appellant 

approached the driver’s side window, and his companion went to the passenger side, 

where Barrera was sitting. Appellant put a gun to Paxtor’s head and asked him if he 

belonged to a gang. Paxtor responded that he did not belong to any gang. Still pointing 

the gun at Paxtor’s head, appellant demanded that Paxtor hand over everything in his 

wallet. As Paxtor started to pull out his wallet, he told appellant he did not have any 

money. Appellant and the other man then abruptly left, riding away on their bicycles. 

The entire interaction lasted 15 to 30 seconds. Angered by the incident, Paxtor 

began following appellant in his car and called the police. Paxtor followed appellant for 

about an hour. During this time, he dropped Barrera off at her house and resumed his 

pursuit of appellant. As he continued to follow appellant, he dialed 911 multiple times 

and saw appellant apparently commit a similar assault on another man. After appellant 

had left again, Paxtor spoke to the man, who told Paxtor appellant had demanded money. 

Paxtor saw appellant point his gun at someone else in front of a Laundromat. 

Appellant went inside the Laundromat with his bicycle. Police arrived, arrested appellant 

in the Laundromat, and recovered a loaded semi-automatic handgun hidden in a laundry 

basket. Later that night, Paxtor identified Carlos Sarabia as the second suspect in the 

assault.

Gang Evidence

Paxtor believed appellant to be a gang member when appellant asked Paxtor 

whether he belonged to a gang. He also noticed appellant had tattoos on his face and 

recognized the Playboy bunny tattoo on appellant’s cheek as a gang tattoo, although he 

did not know with what gang it was associated. In fact, appellant had four gang-related 

tattoos on his face, as well as two on his torso, all signifying membership in the Playboys 

gang.
4

One of the arresting officers, Officer Rafael Espinoza, transported appellant to the 

Olympic area police station for booking. During the booking process, Officer Espinoza 

asked appellant a series of standard questions. One of those questions was: “ ‘Have you 

ever been affiliated with a prison or street gang?’ ” Appellant responded, “ ‘I’m Risky 

from Playboys.’ ”

Los Angeles Police Officer Kenny Talbert testified as the prosecution’s gang 

expert. He explained that the Playboys gang is a predominantly Hispanic gang with 

approximately 500 documented members, 200 of whom are “active.” Playboys is the

third most powerful gang in the Los Angeles Police Department’s Olympic Division, 

behind its main rivals, the Mara Salvatrucha and 18th Street gangs. According to Officer 

Talbert, the Mexican Mafia controls the Hispanic street gangs in Southern California, 

including the Playboys.

The primary activities of the Playboys gang are possession of handguns, robbery, 

grand theft of automobiles, carjacking, and selling narcotics, by which the gang funds 

itself. Assaults with weapons also constitute a common Playboys gang activity. 

According to Officer Talbert, assaults benefit the gang by instilling fear in the 

community, which in turn deters victims from talking to the police and reporting gang 

crime, thus enabling the Playboys to control their territory and sell narcotics. Indeed, fear 

and intimidation enhance the gang’s power by allowing the gang to commit crimes with 

impunity, protecting gang members from rivals, and increasing the gang’s membership.

Officer Talbert served in the Olympic Division’s gang enforcement unit for four 

years. During that time, he interacted with appellant at least 15 times, and appellant 

identified himself as a member of the Playboys in about half of those encounters. Officer 

Talbert also reviewed 19 field identification (FI) cards generated by law enforcement 

between 2010 and 2012, which indicated appellant was a member of the Playboys and his 

gang moniker was “Little Risky.” The officer identified appellant’s Playboys gang 

tattoos and opined that gang tattoos on the face constitute a claim of gang affiliation, 

signifying a “deeper involvement” in the gang. Officer Talbert speculated that appellant 
5

is a “shot caller” for the Playboys, based on his long tenure with the gang. According to 

Officer Talbert, appellant would not be engaged in “low status” gang activity such as 

tagging to mark gang territory, which would be done by newer gang members.

In Officer Talbert’s opinion, appellant was an active member of the Playboys gang 

when he committed the assault on September 23, 2013. He based his opinion on 

appellant’s gang tattoos and the 19 FI cards he reviewed, while conceding that there were 

no FI cards dated after 2012. He further recognized that appellant’s association with 

other Playboys gang members noted on the FI cards was limited to contacts with his own 

brothers, who were documented Playboys gang members, and one incident in which 

appellant was associating with Playboys member Jose Gomez on December 27, 2010. 

There was no evidence that the second suspect in the assault had any gang affiliation.4

In response to a hypothetical based on the facts of the case, Officer Talbert opined 

that appellant committed the assault in this case for the benefit of the Playboys gang. He

reasoned that a gang member committed the crime, the crime instills fear in the

community, and the crime was committed in rival gang territory, which would help the 

Playboys “take over another area” and gain prominence. Officer Talbert explained that

when a gang member openly commits a crime in rival gang territory, it helps the gang 

expand its territory into that of its rival and establish narcotic trafficking in the area, 

thereby enabling it to pay dues to the Mexican Mafia.

DISCUSSION

The True Finding on the Gang Enhancement Allegation Lacks

Substantial Evidentiary Support

Appellant contends that because the gang enhancement finding is based entirely on 

supposition, it is not supported by substantial evidence and must be reversed. We agree.

 

4 Officer Herman Rodriguez, one of the arresting officers in this case, conducted 

the field show-up of appellant’s accomplice with Mr. Paxtor. Although the officer had no 

evidence that Sarabia was a gang member, he testified he had assumed that, because 

Sarabia had been caught in a gang area, he must be a gang member.
6

A. Applicable Law

The standard of appellate review for determining the sufficiency of the evidence 

supporting an enhancement is the same as that applied to a conviction. (People v. Wilson

(2008) 44 Cal.4th 758, 806; People v. Mejia (2012) 211 Cal.App.4th 586, 614.) Like a 

conviction unsupported by substantial evidence, a true finding on a gang enhancement 

without sufficient support in the evidence violates a defendant’s federal and state 

constitutional rights and must be reversed. (People v. Weddington (2016) 246 

Cal.App.4th 468, 483; People v. Ochoa (2009) 179 Cal.App.4th 650, 656–657 (Ochoa).)

“In considering a challenge to the sufficiency of the evidence to support an 

enhancement, we review the entire record in the light most favorable to the judgment to 

determine whether it contains substantial evidence—that is, evidence that is reasonable, 

credible, and of solid value—from which a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt.” (People v. Albillar (2010) 51 Cal.4th 47, 

59–60 (Albillar).) We draw all reasonable inferences in favor of the verdict and presume 

the existence of every fact the jury could reasonably deduce from the evidence that 

supports its findings. (People v. Maciel (2013) 57 Cal.4th 482, 515; People v. Kraft

(2000) 23 Cal.4th 978, 1053.)

The court may not, however, “ ‘go beyond inference and into the realm of 

speculation in order to find support for a judgment. A finding . . . which is merely the 

product of conjecture and surmise may not be affirmed.’ ” (People v. Memro (1985) 38 

Cal.3d 658, 695, overruled on other grounds by People v. Gaines (2009) 46 Cal.4th 172, 

181, fn. 2; People v. Marshall (1997) 15 Cal.4th 1, 35; Ochoa, supra, 179 Cal.App.4th at 

p. 663.) “ ‘[E]vidence which merely raises a strong suspicion of the defendant’s guilt is 

not sufficient to support a conviction. Suspicion is not evidence; it merely raises a 

possibility, and this is not a sufficient basis for an inference of fact.’ ” (People v. 

Thompson (1980) 27 Cal.3d 303, 324.) Indeed, “[a] trier of fact may rely on inferences to 

support a conviction only if those inferences are ‘of such substantiality that a reasonable 

trier of fact could determine beyond a reasonable doubt’ that the inferred facts are true. 
7

(People v. Raley (1992) 2 Cal.4th 870, 890–891.)” (People v. Rios (2013) 222 

Cal.App.4th 542, 564 (Rios).)

In 1988 the Legislature enacted section 186.20 et seq., known as the California 

Street Terrorism Enforcement and Prevention Act, to combat the scourge of gang-related 

crimes and violence afflicting the state. (People v. Prunty (2015) 62 Cal.4th 59, 66–67.) 

Section 186.22, subdivision (b)(1) imposes various sentencing enhancements on a 

defendant convicted of a gang-related felony committed with the specific intent to 

promote, further, or assist in any criminal conduct by gang members.

There are two prongs to the gang enhancement under section 186.22, subdivision 

(b)(1), both of which must be established by the evidence. (Albillar, supra, 51 Cal.4th at 

p. 59.) The first prong requires proof that the underlying felony was “gang-related,” that 

is, the defendant committed the charged offense “for the benefit of, at the direction of, or 

in association with any criminal street gang.” (§ 186.22, subd. (b)(1); Albillar, supra, 51 

Cal.4th at p. 60; People v. Gardeley (1996) 14 Cal.4th 605, 622.) The second prong 

“requires that a defendant commit the gang-related felony ‘with the specific intent to 

promote, further, or assist in any criminal conduct by gang members.’ ” (Albillar, at 

p. 64; § 186.22, subd. (b)(1).) 

“In order to prove the elements of the criminal street gang enhancement, the 

prosecution may, as in this case, present expert testimony on criminal street gangs.” 

(People v. Hernandez (2004) 33 Cal.4th 1040, 1047–1048.) “ ‘Expert opinion that 

particular criminal conduct benefited a gang’ is not only permissible but can be sufficient 

to support [a] gang enhancement.” (People v. Vang (2011) 52 Cal.4th 1038, 1048; 

Albillar, supra, 51 Cal.4th at p. 63.) While an expert may render an opinion assuming the 

truth of facts set forth in a hypothetical question, the “hypothetical question must be 

rooted in facts shown by the evidence.” (People v. Gardeley, supra, 14 Cal.4th at p. 618.) 

Indeed, an “expert’s opinion may not be based ‘on assumptions of fact without 

evidentiary support [citation], or on speculative or conjectural factors.’ ” (People v. 

Richardson (2008) 43 Cal.4th 959, 1008; People v. Gardeley, supra, 14 Cal.4th at p. 618 
8

[“ ‘Like a house built on sand, the expert’s opinion is no better than the facts on which it 

is based’ ”].) And an expert is generally not permitted “to supply case-specific facts 

about which he has no personal knowledge” in order to render an opinion about what 

those facts may mean. (People v. Sanchez (2016) 63 Cal.4th 665, 676 (Sanchez).)

As for the specific intent prong, “ ‘[i]ntent is rarely susceptible of direct proof and 

usually must be inferred from the facts and circumstances surrounding the offense.’ ” 

(Rios, supra, 222 Cal.App.4th at pp. 567–568.) Our Supreme Court has thus held that the 

scienter requirement may be satisfied with proof “that the defendant intended to and did 

commit the charged felony with known members of a gang,” from which “the jury may 

fairly infer that the defendant had the specific intent to promote, further, or assist criminal 

conduct by those gang members.” (Albillar, supra, 51 Cal.4th at p. 68.) However, in the 

absence of evidence that the defendant acted in concert with other gang members, an 

inference of specific intent requires evidence beyond mere commission of the charged 

offense and gang membership. (See Rios, supra, 222 Cal.App.4th at pp. 573–575.)

B. The Insufficiency of the Evidence

“A gang expert’s testimony alone is insufficient to find an offense gang related. 

[Citation.] ‘[T]he record must provide some evidentiary support, other than merely the 

defendant’s record of prior offenses and past gang activities or personal affiliations, for a 

finding that the crime was committed for the benefit of, at the direction of, or in 

association with a criminal street gang.’ ” (Ochoa, supra, 179 Cal.App.4th at p. 657.) In 

Ochoa, the crime was a carjacking committed by a lone gang member wielding a shotgun 

outside his gang’s territory. Finding “nothing in the circumstances of the instant offenses 

[to] sustain the expert witness’s inference that they were gang related,” the appellate court 

reversed the gang enhancements based on insufficient evidence to support the gangrelated prong of the statute. (Id. at pp. 661–662.)

In support of the gang-related prong of the enhancement here, Officer Talbert 

testified that the assault could benefit appellant’s gang in several ways, but the record is 

devoid of any specific evidentiary support from which to draw such inferences. Officer 
9

Talbert opined that appellant is an active member of the Playboys gang and committed the

assault for the benefit of the gang by instilling fear in the community. He further testified 

that by committing a crime on rival gang turf, appellant would benefit his gang by helping 

it to expand its territory and its narcotics operations, which would enhance its ability to 

pay dues to the Mexican Mafia. He speculated that the assault in rival gang territory 

would benefit the Playboys by enabling the gang to “take over” the area and set up 

narcotics trafficking operations there, which would somehow make the Playboys’ “area 

even more prominent.” But no evidence exists in this case to connect appellant’s assault 

with any attempt to take over rival gang territory, much less the sale of narcotics or

paying dues to the Mexican Mafia. The expert also opined that the gang would stand to 

benefit from the criminal act of a member regardless of where the crime is committed—

inside or outside gang territory—because a crime committed anywhere by a member of 

the gang instills fear in the community. Again, the record reveals no evidence to support 

the expert’s supposition.

Officer Talbert postulated another benefit to the gang might be that the assault 

served as an “initiation” to show “any new recruits” that they would be expected to go out 

and commit criminal activity to further the gang. But even Officer Talbert was forced to 

admit such a characterization of the assault amounted to nothing more than idle 

speculation.

In reaching his conclusion that the assault benefited the gang, Officer Talbert 

relied on the evidence that appellant was a documented member of the Playboys gang, he 

had visible gang tattoos on his face, and he asked the victim what gang he was from.5 In 

 

5 Appellant further cites our Supreme Court’s recent decision in Sanchez to 

challenge the sufficiency of the evidence in support of the gang allegation. Sanchez

announced the following rule: “When any expert relates to the jury case-specific out-ofcourt statements, and treats the content of those statements as true and accurate to support 

the expert’s opinion, the statements are hearsay. It cannot logically be maintained that the 

statements are not being admitted for their truth. If the case is one in which a prosecution 

expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless 
10

the expert’s opinion, it did not matter that appellant did not speak the name of his gang, 

because the tattoos on his face declared the crime was connected to the gang, whether or 

not the victim understood the significance of the tattoos. Further, when a gang member 

asks someone, “Where are you from?” it is always meant as a challenge, and the wrong 

response could lead to some kind of violent reaction. According to the expert, when 

members of the community who are not gang members are asked that question, it instills 

fear, it makes them feel uncomfortable, and it makes them feel challenged, which 

ultimately benefits the gang. But the evidence underlying the expert’s opinion established 

nothing more than appellant’s membership in a gang, which is wholly inadequate to 

support the inference that appellant committed assault for the benefit of his gang.

Noting that not all crimes are necessarily gang related, Ochoa explained, “In an 

evidentiary context, ‘ “[r]eaching a conclusion that offenses are signature crimes requires 

a comparison of the degree of distinctiveness of shared marks with the common or 

minimally distinctive aspects of each crime.” ’ ” (Ochoa, supra, 179 Cal.App.4th at 

p. 662.) Here, the expert did not characterize assault as a signature crime of the Playboys 

gang, mentioning the offense as a common gang activity almost as an afterthought. 

Moreover, the prosecution presented no evidence to suggest the Playboys commit the 

crime of assault in a distinctive manner or that appellant did so in this case. The evidence 

 

(1) there is a showing of unavailability and (2) the defendant had a prior opportunity for 

cross-examination, or forfeited that right by wrongdoing.” (Sanchez, supra, 63 Cal.4th at 

p. 686, fn. omitted.) Thus, appellant contends that information on the FI cards upon 

which Officer Talbert based his opinion that appellant is a member of the Playboys gang 

constitutes inadmissible testimonial hearsay which ran afoul of the confrontation clause.

We need not decide whether the contents of the FI cards here constituted 

inadmissible hearsay or was testimonial, however. First, as in Sanchez, the circumstances 

surrounding the preparation of the FI cards do not appear in the record. We therefore 

have no means by which to assess the primary purpose for which they were prepared. 

(See Sanchez, supra, 63 Cal.4th at p. 697.) Moreover, in this case Officer Talbert relied 

not only on the FI cards prepared by others, but also on his own observations and 

interactions with appellant in concluding he was an active Playboys gang member.
11

here thus showed nothing more than a garden variety assault committed by a member of a 

gang. This, standing alone without a shred of evidence of a real world benefit to the

gang, does not suffice to support imposition of a gang enhancement.

Ochoa declared: “There was no evidence that only gang members committed 

carjackings or that a gang member could not commit a carjacking for personal benefit, 

rather than for the benefit of the gang. Indeed, two of the People’s witnesses testified that 

gang members can commit crimes on their own without benefitting the gang. While the 

sergeant effectively testified that carjacking by a gang member would always be for the 

benefit of the gang, this ‘ “did nothing more than [improperly] inform the jury how [the 

expert] believed the case should be decided,” ’ without any underlying factual basis to 

support it.” (Ochoa, supra, 179 Cal.App.4th at p. 662, quoting In re Frank S. [(2006) 

141 Cal.App.4th 1192,] 1197.)

So it is in the case before us. Officer Talbert conceded that gang members 

sometimes commit crimes for personal gain and not for the benefit of a gang. But he 

insisted “only an active gang member is going to ask where you’re from,” and any 

criminal act that follows such a question is committed for the benefit of the gang. Thus 

reduced to its essence, Officer Talbert simply informed the jury that appellant was a gang 

member, and any crime he committed benefited the gang. But as our Supreme Court has 

emphasized, “[m]ere active and knowing participation in a criminal street gang is not a 

crime.” (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130.) And a “gang enhancement 

cannot be sustained based solely on defendant’s status as a member of the gang and his 

subsequent commission of crimes.” (Ochoa, supra, 179 Cal.App.4th at p. 663; Rios, 

supra, 222 Cal.App.4th at pp. 573–574.)

Officer Talbert himself rejected the notion that one could conclude a person 

commits a crime for the benefit of a gang based solely on gang affiliation, gang tattoos 

and carrying a weapon, saying, “You need more factors.” But the prosecution here failed 

to present any evidence of other factors to support the expert’s opinion of gang benefit. 

Accordingly, the gang enhancement cannot be sustained on the basis of the expert’s
12

opinion.

While the evidence falls well short of demonstrating the assault was gang-related, 

the prosecution’s showing on the specific intent prong of the enhancement was

completely nonexistent. Officer Talbert gave no opinion at all about whether appellant 

committed “the gang-related felony ‘with the specific intent to promote, further, or assist 

in any criminal conduct by gang members.’ ” (See Albillar, supra, 51 Cal.4th at p. 64; 

§ 186.22, subd. (b)(1).) But even if such an opinion could be teased out of the expert’s 

testimony regarding gang-relatedness, an inference about appellant’s intent would lack 

any basis in the evidence. While appellant committed his crime in concert with another 

person, the record contains no evidence that Sarabia had any gang affiliation whatsoever. 

As discussed above, the prosecution sought to prove the gang allegation with evidence of 

appellant’s gang status and his commission of the charged offense after asking the victim 

where he was from. But as Rios explained: “Although Albillar instructs that the 

prosecution may rely on the charged offense as the criminal conduct supporting the 

enhancement when the defendant acts in concert with others, in a case such as this, where 

the defendant acts alone, the combination of the charged offense and gang membership 

alone is insufficient to support an inference on the specific intent prong of the gang 

enhancement.” (Rios, supra, 222 Cal.App.4th at pp. 573–574; Albillar, supra, 51 Cal.4th 

at p. 68.) The record in this case contains no facts to fill this evidentiary void, and hence, 

no basis to find the requisite intent under the second prong of the gang statute.

For all these reasons, we hold that the evidence was insufficient to support the 

gang allegations in this case. (§186.22, subd. (b)(1).) Because we reverse the jury’s true 

finding on the gang enhancement allegation, we need not address appellant’s other 

contentions regarding admission of his statements during booking about his gang 

affiliation and the court’s imposition of sentencing enhancements under both sections 

186.22, subdivision (b)(1)(C) and 12022.5.
13

DISPOSITION

The true finding on the gang enhancement allegation is reversed, and the cause 

remanded to the trial court for resentencing. In all other respects, the judgment is

affirmed.

NOT TO BE PUBLISHED.

LUI, J.

We concur:

CHANEY, Acting P. J.

JOHNSON, J.