P v. Ewing (3rd. Dist.): Gang Allegations Affirmed; Evidence Satisfies P v. Prunty and P v. Velasco Requirements.

Mr. Ewing, one Mr. Bergara, and two others set out to rip off a guy who was trying to buy 1200 dollars worth of OxyContin.  The quartet planned to meet up with the victim, take his 1200 dollars and then leave without delivering the goods.  Initially things went according to plan, but then, after taking the victim's 1200 dollars, someone (Ewing or Bergara) pulled a gun and shot the victim.

Ewing was eventually convicted of, among other crimes, shooting into an inhabited vehicle, PC 246.  The jury found true a gang enhancement, PC 186.22(b)(4) alleged as to the 246.  The bone and sinew of Ewing's appeal is that the evidence was insufficient to support the gang enhancement.

A Third District panel affirms.

The gang enhancement requires the following.

person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang 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 criminal conduct by gang members

And a criminal street gang is defined as follows.

any ‘ongoing organization, association, or group of three or more persons’ that shares a common name or common identifying symbol; that has as one of its ‘primary activities’ the commission of certain enumerated offenses; and ‘whose members individually or collectively’ have committed or attempted to commit certain predicate offenses

It is no surprise that the above language has generated a significant volume of appellate opinions.  One such opinion was People v. Prunty, where the Supreme Court of California had occasion to interpret the criminal street gang definition within the context of umbrella gangs and their sects.

Certain California prison gangs are comprised of a small number of incarcerated individuals who are segregated from the general prison population.  These individuals are said to exert control over, and receive loyalty and tithing from, a much larger group comprised of incarcerated individuals in the general prison population as well as recently released persons on parole.  In addition to these more formal groups, exist groups of usually younger people who engage in criminal activity.  These last groups are highly local in name and activity, having names that incorporate specific street names or neighborhoods.

These local groups often identify with, and use the symbols of, the more formal prison-based gangs.  This has led to the State grouping all of the above groups under one umbrella, identifying sometimes distinct, isolated, local groups as belonging to a singular gang.  In People v. Prunty, the California Supreme Court faced a case where the defendant belonged to local gang X.  To prove that gang X met the legal definition of a criminal street gang, the prosecutor used the prior convictions of members of local gang Y.  The prosecutor did this under the theory that because both local X and local Y identified with the same prison gang, they were all members of the same gang.  The California Supreme Court reversed the conviction in Prunty, holding that, to gain a conviction under this "umbrella" theory, the State was required to show some collaboration, association, or contact, between the local subset(s) and, if necessary, between the local subset(s) and the umbrella organization.

In this case, there was evidence that the umbrella prison gang sent a group, including Bergara, to the Redding area in order to establish a local affiliate gang.  Since the prior convictions the State used to establish the organization was a criminal street gang were all of this "Redding seed group", deployed to Redding by the prison gang, there was no Prunty issue in the State's proof.

As an aside, the facts in this case demonstrate the refinement with which the prison gangs have drafted their rules in order to insure a steady flow of young people to do their bidding.  By encouraging those on the outside to advertise their criminal behavior and gang affiliations, the probability of those persons being caught and prosecuted rises sharply.  And once these young people are in prison, the prison gang has greater coercive power over them.  By encouraging or requiring crude prison tattoos which cannot be concealed (face, neck, head, hands), any future integration into larger society by members is improbable, meaning they will continue to be reliant upon the gang for social and financial support.  And like everything, this support comes with a price.