1

Filed 9/9/16 P. v. Brooks CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v. ISAIAH BROOKS,

Defendant and Appellant. C080082
(Super. Ct. No. SF126236B)

Defendant Isaiah Brooks ple ade d guilty to voluntary manslaughter and admitted to
a firearm enhancement , in exchange for dismissing certain charges , including a gang
offense and enhancements . He was s entenced to a stipulated 12

- year term . He now appeals , arguing his plea was in valid because his attorney rendered ineffective assistance in failing to move to set aside the gang allegations . He reasons the preliminary hearing
evidence was insufficient to support those allegations . We conclude the evidence was
sufficient to withstand a motion to set aside , and thus defendant’s plea was not the result
of ineffective assistance. We therefore affirm the judgment

.2 I. BACKGROUND
A. The S hooting
Defendant was one of six young men involved in a fatal shooting near a convenience store . Two of th em , defendant and co defendant Arthur Miller , 1 were charged together. Many of the events surrounding the shooting were captured by
surveillance video

. On the evening of February 10, 2012 , defendant (who was 15 years old at the time) , codefendant , and four other young men walk ed to a convenience store

. Defendant
and three others entered the store, while codefendant and another waited out side . The
victim drove up and park ed opposite the front door. He got out and walked to the store

. O ne of the two young men out side opened the door for him and sa id , “ W hat’s up, w hat’s

up , cuz ? ” The victim then walked inside

. The two outside talked , and one hand ed the

o ther a pistol. Inside, defendant confronted the victim saying: “What’s up, Crip? What’s up, Crip ?” The four inside then left the store and rejoined the two outside

. Codefendant said they were going to “knock [the victim] over

. ” The six then left and walk ed down an adjacent street

. The victim , after buying orange juice, left the store , g o t in his car , and drove down
the same street the six young men had walked down. Witnesses heard gunshots. A video recording captured the driver’s side window shat tering. The victim died of a gunshot
wound to the neck.
A confidential informant recalled that on the night of the shooting she was at an apartment complex meeting a friend , when approximately five young men , including
defendant , ran up and together said : “We killed him. We came up on him, we shot him.”

1 Though tried together, only defendant is a party to this appeal. The other young men were charged separately.3

D efendant said , “I killed [the victim]” and “I shot [the victim]

. ” The group also told her

t he victim had switched from being a Crip to a Blood. Following the shooting , t he police interviewed sev eral of the young men in the
surveillance video

. While none claimed involvement in the shooting , they provided
details of the shooting and the fact that most, if not all, of the you ng men responsible
were members of a group called “ Mixx Team. ”
B. The P r eliminary H earing At the preliminary hearing, a gang violence unit detective , Mark Couvillion,
testified as a gang expert. He opined that both defendant and codefendant were members of Mixx Team, a criminal street gang as defined by Penal Code section 186.22

. 2 Under section 186.22, a criminal street gang is an ongoing group of three or more, with a common name or symbol, a primary activity of committing certain enumerated criminal

acts (§ 186.22, subd. (f)), and having a pattern of criminal gang activ ity, as shown by the
commission of certain enumerated offenses ( predicate offenses ) (§ 186.22, subd

. (j))

. The expert explained that Mixx Team is a gang of over 10 members , and one of its primary activities is the commission or attempted commission of crim es enumerated in
section 186.22

. The expert noted two instances following the shooting where Mixx Team
members were arrested. Five months after the shooting, d efendant was arrested when found with a gun. On another occasion, codefendant was arrested whe n found in a park
with two assault rifles. The expert added there cou ld be more arrests he could not recall. Another testifying officer agreed that, “it seems like these young men handled guns, [and] passed guns around to each other.”

2 Undesignated statutory references are to the Penal Code.4

The expert also testified to the requisite predicate offenses, explaining that Mixx Team came under the umbrella of East Side Crips, 3 a documented gang operating in Stockton’s east side , and East Side Crips members have committed predicate offenses.
He cited one East Sid e Crips member who was convicted of drug sales o n December 9,
2007 , and firearm possession on March 9, 2008 ; and a nother member who was convicted
of firearm possess ion on March 3, 2010 , and April 6, 2010. In concluding Mixx Team came under the umbrella o f East Side Crips, the expert
relied on several factors. T he expert relied on the statement of one young man (who was

one of the six present at the shooting ) to the police that he was a member of Mixx Team,
which is part of East Side Crips. The young man had also said Mixx Team had a feud
with the Bloods. The expert also noted that Mixx Team would claim and hang out in “Market, Filbert, and Greenwood , ” an area associated with East Side Crips. Also, in June 2013 (a
month before he was arrested in the park for having assault rifles), codefendant was seen by police wearing an “East Side” sweatshirt. Codefendant described himself as “the general” of Mixx Team. The expert also relied on a photo from defendant’s Facebook account showing six
young men , includ ing defendant , codefendant , and two others from the surveillance
video

. In the photo, one youth made a Crips hand sign, while an other made an “M” sign
for Mixx Team. The photo also had in overlaid text, “Mixx Team” and “Fucc Hem Squad.” The e xpert noted the alternate spelling of “ fuck ,” explaining that Crips avoid writing “ck , ” as it stands for Crip k iller . “Being a Crip gang member, you write it
‘c

- c.’ ” 4

3 East Side Crips is used interchangeably with East Coast Crips. 4 The expert explained the photo “shows a group that .

. . call themselves Mixx Team being a part of East Coast Crips.”5

Summarizing his conclusion that Mixx Team fell under the umbrella of East Side Crips, the expert explained : “based on my experience, and dealing with East Side Crips, knowing the areas they control, like Filbert Arms, look [ing] at the area they’re contacted with guns, combined with the statements of parties of East Side Crips , [¶] .

. . [¶] [ w ] hen you put it all together looking at the photos and the statements

. . . all the dots kind of
start to connect.” T he expert conceded , “We’re trying to decide whether we make Mixx Team separate, trying to make them their own group, or put them under that umbrella of East Coast Crips.” But a moment later, he stated , “I believe [defendant] to be part of Mixx Team which falls under that umbrella of East Coast Crips.” Finally, the expert opined tha t defendant and codefendant were Mixx Team members and “intended to assist, further, or promote criminal conduct by gang members.” The expert also opined that the shooting “was in furtherance, at the direction of, [or] in association with the criminal str eet gang.” The expert noted the young men had promoted the gang before the killing , saying “What’s up, Cuz ? ” (“Cuz” is a term Crips use

. ) Afterwards, they bragged about the killing , saying “ We killed him. We came up on him, we shot him,” and “ I shot t he [the victim].” The victim too had been an East Side Crip who , according to the confidential informant, had switched to the Bloods. He had a tattoo of “ES,” for “East Side.” The expert added t here was also a reference to the victim being a “snitch.”
C. The P lea B argain On December 16, 2014 , defendant ple a d ed guilty to voluntary manslaughter ( § 192 subd. (a)) and admitted to a firearm enhancement ( § 12022, subd. (a)). In exchange, various counts were dismissed , including the gang allegations

. F ollowing his6

plea, defendant moved, unsuccessfully, to change his plea. 5 On July 16, 2015, h e was sentenced to a stipulated 12

- year term in state prison

. After obtaining a certificate of probable cause, defendant filed a timely appeal on August 19, 2015.
II. DISCUSSION On appeal, defendant contends his plea was in valid because his attorney rendered ineffective assistance in failing to move to set aside the gang allegations . He reasons the preliminary hearing evidence could not support the gang allegat ions

. And his counsel’s
fail ure to challenge th o se allegation s forced him to accept a plea under the false belief he faced more serious penalties tha n he should have

. We disagree.
A. Legal S tandard f

or a M otion to S et A side “[T] he showing required at a preliminary hearing is exceedingly low. ” ( Salazar v. Superior Court (2000) 83 Cal. App.4th 840, 846 .) An information will not be set aside “if
there is some rational ground for assuming the possibility that an offense has been
committed and the accused is guilty of it.” ( Rideout v. Superior Court (1967) 67 Cal. 2d 471, 474

. ) Only if “ ‘ there is a total absence of evidence to support a necessary element of the offense charged ’ ” will the offense be set aside. ( People v. Plengsangtip ( 2 007)
148 Cal. App.4th 825, 835.) The evidence supporting each element of the charged crime

“ ‘ may be made by means of circumstantial evidence supportive of reasonable inferences on the part of the magistrate. ’ ” ( Ibid

. ) “ ‘ Every legitimate inference that may be drawn
from t he evidence must be drawn in favor of the information. ’ ” ( Ibid .)
B. A Criminal Street Gang U nder S ection 186.22
Section 18 6 .22 punishes “[a]ny person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of

5 His arguments included that his attorney had induced the guilty plea , he was operating under duress , and his appointed counsel rendered ineffective assistance in misrepresenting that defendant’s mother wanted him to take the plea deal.7

criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.” ( § 186.22, subd. (a).) It also imposes additional punishment for felonies committed “ for the bene fit of, at the direction of, or in association with any criminal street gang

. ” ( § 18 6 .22 , subd. (b)

. )
A “ c riminal street gang” is statutorily defined a s (1) an ongoing association of three or more persons with a common name or identifying sign or symbol; (2) having as one of their primary activities the commission of one or more criminal acts enumerated in the statute; and (3) having members who either ind ividually or collectively have engaged
in a “ pattern of criminal gang activity ” by committing, attempting , or soliciting two or

m ore enumerated offenses (predicate offenses) during the statutory period. ( § 186.22,
subd s

. (e), (f) , (j) ; People v. Gardeley (1996) 14 Cal. 4th 605, 617 , disapproved on other grounds in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13 .)
To determine the nature of the gang ’ s primary activities, the trier of fact may look
to the gang’s past and present criminal activities. ( People v. Sengpadychith (2001)
26 Cal. 4th 316, 323.) It may also consider the charged offense ’s circumstances

. ( Ibid. )
But i solated criminal conduct is not enough. ( Id . at p p. 323

- 234.) “ Expert testimony based on an adequate factual foundation might a lso be sufficient.” ( In re Alexander L. (2007) 149 Cal. App.4th 605, 611 .) The criminal street gang elements may be establish ed by the conduct of another
subset of the same gang if a sufficient connection exists between the subsets. (See People v. Prunty (2015) 62 Cal. 4th 59, 72 .) A connection can include members

“ ‘ hang[ing] out together ’ ” or “ ‘ back[ing] up each other. ’ ” ( Id

. at p. 78

. ) It can also include protect ing the same territory or turf, or conducting “ independent, but harmonious,
criminal o perations within a discrete geographical area. ” ( Id . at p. 77.) Similarly,
members professing or exhibiting loyalty to each other, and fluid or shared membership among subset s may also show a connection . ( Id. at p. 78.) “In general , evidence that8

shows subset members have communicated, worked together, or share a relationship (however formal or informal)” is sufficient. ( Id . at p p. 78

- 79

. )
C. The P reliminary H earing E vidence W

as S ufficient to S upport the G ang A lleg ations
Defendant r aises an array of arguments as to why the preliminary hearing evidence
is insufficient. As we explain, these arguments must fail.
1. Evidence supported an organizational or associational connection between East Side Crips and Mixx Tea m The prosecution use d conduct of East Side Crips to establish Mixx Team as a criminal street gang. Defendant argues this was impermissible because the evidence did

not establish that Mixx Team was a subset of East Side Crips

. Viewed in the context of a preliminary hearing, w e disagree

. The evidence supported t he gang expert’s opinion testimony that Mixx Team fell under the umbrella of East Side Crips. A Mixx Team member told police that Mixx Team is part of East Side Crips. Mixx Team members would frequent , and claim,
“Mar ket, Filbert, and Greenwood,” territory associated with East Side Crips

. A fter the shooting, codefendant (a Mixx Team member ) was seen by police wearing an “East Side”
sweatshirt. As the expert explained, “ [ w ] hen you put it all together looking at the ph otos and the statements

. . . all the dots kind of start to connect.” Combined, this evidence satisfies the minimal showing required for a preliminary hearing. ( C f. People v. Ramirez (2016) 244 Cal. App.4th 800, 815 [holding preliminary hearing evidence insufficient where testimony did not indicate the gangs “ shared information, defended the same claimed turf, had members commonly present in the same vicinity, or otherwise behaved in a manner that wou ld permit the inference of an associational or organizational connection among them , ” nor did the testimony show the
gangs self

- identified as members of the larger Sureño association].)9

Defendant however notes that the gang expert conceded, “[w]e’re trying to decide whether we make Mixx Team separate

. . . or put them under that umbrella of East Coast Crips

. ” But despite possible uncertainty as to where exactly Mixx Team and East Side Crips f e ll in a Crips hierarchy, there is sufficient evidence of a conne ction between the two groups. Indeed, the expert opined several times that Mixx Team fell under the umbrella of East Side Crips.
2. There was sufficient evidence of a pattern of criminal activity
Defendant further argue s the pattern of criminal activity wa s not established. He avers the expert did not provide the crimes and dates of the convictions of East Side Crip s members. He is mistaken. The preliminary hearing included testimony of four predicate offenses by East Side Crips. One member was convicted of drug sales on December 9, 2007 , and firearm possession on March 9, 2008. Another member was convicted of firearm possession on
March 3, 2010 , and April 6, 2010. These four predicate offenses satisfy the pattern of criminal activities element. 6 And because there is a sufficient connection between Mixx Team and East Side Crips, the predicate offenses apply to Mixx Team.
3. Mixx T

eam had as one of its primary activities the commission of one or
more criminal a cts enumerated in the statute
Defendant further argues the evidence cannot establish either Mixx Team or East Side Crips as criminal street gang s because the primary activity element is lacking

. We disagree.

6 The time pe riod requirements that one of the offenses occur after the effective date of the chapter and the last offenses occur within three years after a prior offense are also satisfied. (See § 186.22, subd. (e); In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1001

- 1002.)10

The gang expert opined that one of Mixx Team’s primary activities wa s the

co mmission or attempted commission of the statutorily enumerated offenses. T hat opinion was support ed by two separate arrests of Mixx Team members: F ive months after the shooting defendant was arrested with a gun, and on another occasion
codefendant was ar rested with two assault rifles. 7 There was also evidence that Mixx Team members handled guns and passed them around to each other. T he shooting itself
is also evidence of primary activity. ( See People v. Sengpadychith , supra, 26 Cal. 4th at
p. 323 [“ Nothing in this statutory language prohibits the trier of fact from considering the
circumstances of the present or charged offense in deciding whether the group has as one of its primary activities the commission of one or more of the statutorily listed c rimes ”].) Together these offenses comprise evidence of Mixx Team’s primary activity and we cannot say there is a total absence of evidence as to this element . (See People v. Vy (2004) 122 Cal. App.4th 1209, 1225 [finding the existence of three violent felo nies (including the charged offense) by a small gang over less than three months to be sufficient to satisfy the primary activities element].)
4. There was evidence the murder was committed to benefit the criminal street

gang Finally, defendant argues there was insufficient evidence that the shoot ing was committed to benefit the criminal street gang. We disagree

. The expert opined that the shooting “was in furtherance, at the direction of, [or] in association with the criminal street gang.” Before th e shooting, the young men taunted
the victim , who had switched from Crips to Bloods: “What’s up Crip ? ” and “What’s up

7 While the specifics of the offenses are not clear, it may be inferred that the offenses were in violation of section 25850, subdivision (a), carrying a loaded firearm, or section 29610, minor in possession of a firearm. “Every legitimate infere nce that may be drawn from the evidence must be drawn in favor of the information.” ( Rideout v. Superior Court, supra, 67 Cal.2d at p. 474.)11

Cuz ? ” After the shooting, they bragged about it: “We killed him. We came up on him, we shot him.” Defendant said, “I killed [the vict im]” and “I shot [the victim]

. ” T hat the
shoot ing was done to promote Mixx Team and East Side Crips and to punish disloyalty to the Crips is reasonably inferred

. T h e expert’s opinion and accompanying evidence is evidence the shooting was committed to ben efit the criminal street gang . (See People v. Vang (2011) 52 Cal. 4th 1038, 1048 [ e xpert opinion that felony benefited a gang is permissible and can be sufficient to support a § 186.22 enhancement].) In sum, as to each element of the gang allegation s , there was at least some rational ground to support it. For no element was there a total absence of evidence. Therefore, we find the preliminary hearing evidence sufficient , as a matter of law, to withstand a
motion to set aside. Accordingly , defense c ounsel did not render ineffective assistance in failing to move to set aside the gang allegations. (See People v. Price (1991) 1 Cal.4th 324, 387 [c ounsel ’ s failure to make a futile or unmeritorious motion or objection is not ineffective assistance].) De fendant’s ineffective assistance claim fail s

. III. DISPOSITION The judgment is affirmed

. /S/

RENNER , J.

We concur:

/S/

NICHOLSON , Acting P. J.

/S/

ROBIE , J.