P v. Nicholes (3rd Dist.) Gang Enhancement Reversed After Evidence Fails to Satisfy the Prunty Test.

Mr. Nicholes was part of a dance floor argument that spilled into the parking lot.  At trial witnesses gave differing accounts of the events, but basically agreed that there was a lot of talk about "who was going to whoop whose ass" and that the "ass whooping" talk terminated when Nicholes fired his gun several times, hitting two people.

A jury convicted Nicholes of attempted voluntary manslaughter and assault with a firearm along with enhancements for personally using a firearm and for committing the crime to benefit a criminal street gang.  Nicholes appealed.

The Third District, in the published portion of the opinion, reverse the gang enhancements.

The issue is whether the state satisfied the Prunty test.  Under Prunty, when the state seeks to prosecute a gang crime (or enhancement) under a theory of a single gang (here the Nortenos) which consists of one or more subsets, it must show evidence or association or organizational connection between the subsets.

Here, the state's expert, a Yuba policeman opined that Nicholes was a member of the Oak Park Nortenos from Sacramento.  He testified there were other Norteno subsets in the area: the Yuba City Nortenos, Vario Live Oak Nortenos and East Morez Nortenos.  In proving up the existence of the umbrella Norteno gang, the expert opined there were 250 Nortenos in Sutter County and that the primary activities of the local Nortenos met the statutory definition of a criminal street gang.  The state then proved the required predicate offenses using convictions of members of the Norteno criminal street gang. 

What the panel finds lacking is any sufficient evidence that the Oak Park Nortenos had an active association with the larger Norteno umbrella or that there was some organizational connection between the subsets.

The result is Nichole gets seven years and eight months lopped off his sentence.  Instead of 17 years, he now only has to serve nine years, four months.