Ms. Villarreal had a "Facebook conflict" with a neighbor named Natalie. Villarreal and her boyfriend, Ramirez, went to Natalie's house to straighten things out. What happened next was that Ramirez shot Andy in the face. The details depend on whom you ask.
Natalie and her brother, Andy, claim that Villarreal came at Natalie with a bat, hitting Natalie on the arm. When Andy came outside to help his sister, Ramirez shot Andy in the head.
Ramirez and Villarreal claim that Andy was the one with the bat and only after Andy had begun swinging the bat at Ramirez' head did Ramirez shoot.
The government believed Natalie and Andy and charged Ramirez and Villarreal with attempted murder with an gang enhancement and with being active members of a criminal street gang. At the preliminary hearing, a policeman testified that Ramirez had Sureno gang tattoos and had been photographed wearing blue clothing. Same policeman then testified that Villarreal was associated with the Surenos by way of dating Ramirez.
As part of proving up the gang allegations and charges, the government introduced prior convictions of two men, one a member of the Eastside Rivas gang and the other a member of the Eastside Victoria gang. The policeman testified both gangs aligned themselves with the Surenos.
The magistrate issued a holding order as to all charges and allegations. Villarreal and Ramirez filed PC 995 motions to set side the gang charges and enhancements on the basis that the evidence at the preliminary hearing was insufficient. The motions were denied and the case proceeded to trial. A jury convicted Villarreal and Ramirez of attempted murder, but acquitted them of the gang crime and rejected the gang enhancement. Villarreal and Ramirez appealed, arguing that it was error to deny their PC 995 motions and that said error resulted in the jury hearing irrelevant gang evidence which was prejudicial.
A Fourth District panel agrees and reverses.
The first issue in the opinion concerns the "umbrella theory" of gangs. At the preliminary examination, the government proceeded under the theory that Ramirez was a member of the Sureno criminal street gang. Therefore the government had the burden to demonstrate that the Surenos satisfy the penal code's definition of a criminal street gang. To do this, they introduced evidence of crimes committed by the Eastside Rivas gang and Eastside Victoria gangs. The witness testified these two local gangs "aligned" themselves with the Sureno gang, but the government presented no facts to support this assertion. Specifically the government failed to present any evidence of an organizational connection between these subsets and the Sureno gang. And without this connection, there is insufficient evidence (at this prelim) that the Surenos are a gang.
The panel doesn't stop there. Even assuming the government had proven the Surenos are a gang, the evidence was insufficient for a holding order because it failed to establish that Ramirez and Villarreal were more than passive participants, meaning that the policeman witness' opinions contrary were "conclusory and factually unsupported".
After finding the PC 995 was erroneously denied, the panel finds that interjecting all the gang evidence into a trial that hinged upon witness credibility, was prejudicial. The conviction is reversed.
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