People v. Soriano

Filed 6/8/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G058363

v. (Super. Ct. No. 18HF1097)

JEAN ERVIN SORIANO, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Robert
Alan Knox, Judge. Reversed and remanded for resentencing.
Michelle T. LiVecchi-Raufi, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Matthew Rodriquez, Acting Attorney
General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys
General, for Plaintiff and Respondent.

* * *
 The California Supreme Court recently clarified that when an appellate
court reviews a case for substantial evidence it must also consider the standard of proof.
(Conservatorship of O.B. (2020) 9 Cal.5th 989, 1000-1001.) In a criminal case, a
defendant is presumed innocent—and is entitled to an acquittal—unless the prosecution
1
has proven the defendant guilty beyond a reasonable doubt. (Pen. Code, § 1096.)
In this case, two gang members were walking together in their gang’s
territory where they both live. Police detained the pair and arrested defendant after
retrieving a knife from his pants pocket. A gang expert later opined (given these facts)
defendant carried the knife for the benefit of, in association with, and with the intent to
promote his gang. A jury found defendant guilty of carrying the concealed knife and
found true a two-year gang enhancement. (§§ 21310, 186.22, subd. (b).)
We hold there was insufficient evidence for a reasonable jury to find the
gang enhancement true beyond a reasonable doubt. (See Conservatorship of O.B., supra,
9 Cal.5th at p. 1008.) Thus, we reverse defendant’s gang enhancement and remand the
matter so the trial court can conduct a new sentencing hearing.

I
FACTS AND PROCEDURAL BACKGROUND
On August 1, 2018, at about 2:30 p.m., defendant Jean Ervin Soriano and
B. Ceja were walking together on a residential sidewalk in San Juan Capistrano. As
Soriano and Ceja approached a crosswalk, two deputy sheriffs detained them. One of the
deputies asked Soriano if he had any weapons or contraband on him, Soriano said he had
a “blade” and “a couple of syringes.” Prior to a patdown search, Soriano warned the
deputy “to be careful not to cut himself.” The deputy pulled out a knife and two syringes

1
Further undesignated statutory references are to the Penal Code.

2
from Soriano’s right front pants pocket. The knife had a handle with a four to five-inch
fixed blade. The knife was completely concealed within Soriano’s pocket.
Soriano is a member of the Varrio Viejo criminal street gang, which has
over 100 active participants. Ceja is an associate member. Soriano has a gang tattoo on
2
the top of his head. The Varrio Viejo gang claims the entire City of San Juan Capistrano
as its territory, but its membership is concentrated in four residential neighborhoods.
Most of the gang lives in the Villas, which is where Ceja lives. About a mile away is the
Carolinas, which is where Soriano lives. The deputies detained Soriano and Ceja near
“the Stoop,” which is the gang’s main gathering point in the Villas.

Court Proceedings
The prosecution filed an information charging Soriano with carrying a
concealed dirk or dagger (a “wobbler” charged as a felony), and misdemeanor possession
of drug paraphernalia. (§ 21310; Health & Saf. Code, § 11364, subd. (a).) The
information further alleged a gang enhancement. (§ 186.22, subd. (b)(1).)
During a three-day jury trial, four members of the Sheriff’s Department
testified. They were all either current or former members of a gang enforcement team.
Deputy Gilbert Dorado was the sole percipient witness. He testified Soriano and Ceja
3
were detained as part of “a practice that we call gang suppression.” Dorado said:
“Respect within a gang is the ultimate form of currency. In order for a gang member to
gain respect, he needs to what’s called put in work. He needs to go out there and commit

2
We reviewed the trial exhibits. There is a photograph of the tattoo taken from directly
above Soriano’s head; it appears the tattoo could only have been visible from this angle,
depending on the length of Soriano’s hair. There was no testimony about when the
photograph was taken, or the visibility of Soriano’s gang tattoo on the day of his arrest.
3
Soriano did not challenge the constitutionality of his detention. (See § 1538.5.)

3
crimes, whether it be thefts, stabbings, graffiti, or simply just posting up and hanging out
with other gang members, showing that loyalty and dedication.”
Lieutenant Patrick Rich testified Varrio Viejo members normally “stand
up” in the Stoop. Rich said, “they’re basically acting as a sentry or lookout for the gang,
seeing who’s coming into their neighborhood, looking for rivals, crimes of opportunity,
law enforcement.” In 2010, Rich occasionally contacted Soriano at the Stoop, along with
other gang members. Sergeant Harrison Manhart testified that from 2005 to 2014, he had
contacted Soriano about 20 times. In 2011, Soriano admitted to Manhart that he was a
member of the Varrio Viejo gang, and he was aware of its criminal activities.
Deputy Andrew Ayala testified regarding the statutory elements of a
criminal street gang. (See § 186.22, subd. (f).) Ayala testified the “primary activities” of
the Varrio Viejo gang are: “Assault with a deadly weapon, assault with force likely to
cause great bodily injury, robbery, felony vandalism, and narcotics sales.” Ayala said
carrying a concealed weapon is a “common” crime committed by Varrio Viejo gang
members, and the most frequently concealed weapon is a knife. Ayala testified a gang
member will “typically” let other gang members know when they have a weapon on them
because: “If the police should roll up on us, we all need to leave, and we all need to run
away.” Ayala said: “When gang members carry weapons, they do it to facilitate the
commission of their crimes. They have the weapons to go and commit crimes.”
The prosecution asked Deputy Ayala “hypothetical” questions mirroring
the facts of this case. Ayala opined the crime of possessing a concealed knife was
committed for the benefit of the gang and in association with the gang; Ayala further
opined the “hypothetical” gang member committed the crime with the intent to promote
criminal conduct by gang members (this testimony will be covered more thoroughly in
the discussion section of this opinion). Soriano presented no evidence in his defense.
During its deliberations, the jury asked the trial court about the meaning of
the phrase “in association,” as used in the gang enhancement instruction. (See

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CALCRIM No. 1401.) The court answered by referring the jury to another instruction:
“‘Words and phrases not specifically defined in these instructions are to be applied using
their ordinary, everyday meanings.’” (See CALCRIM No. 200.)
The jury found Soriano guilty of the charged crimes and found true the
gang enhancement. The trial court sentenced Soriano to three years, four months in state
prison, which included two years for the gang enhancement.

II
DISCUSSION
Soriano argues there was insufficient evidence to support the gang
enhancement, Deputy Ayala’s testimony was improper, the trial court erred when it
answered the jury’s question, and the court improperly imposed certain fines and fees.
We are reversing the gang enhancement because there is insufficient
evidence to support it. Consequently, Soriano’s remaining arguments are largely
rendered moot. As far as fines and fees, Soriano may raise any appropriate objections to
whatever penalties might be imposed at the time of the new sentencing hearing.
In the remainder of this discussion, we will: A) clarify the substantial
evidence standard; B) state the general principles of law regarding gang enhancements;
C) review Deputy Ayala’s “hypothetical” testimony; and D) analyze the law as applied to
the facts in the trial record.

A. Substantial Evidence
When substantial evidence is the standard of review, the California
Supreme Court recently clarified that appellate courts must also be mindful of the
underlying standard of proof: preponderance of the evidence, clear and convincing
evidence, or proof beyond a reasonable doubt. (Conservatorship of O.B., supra,
9 Cal.5th at pp. 1005-1009.) Preponderance of the evidence is the default standard in

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civil cases, but in some cases the more elevated standard of proof is clear and convincing
evidence, which demands a greater degree of certainty. (Id. at p. 998.) The Court held
“an appellate court should review the record for sufficient evidence in a manner mindful
of the elevated degree of certainty required by this standard.” (Id. at pp. 1000-1001.)
The Court also reiterated “the firmly established rule in criminal cases that
the prosecution’s burden of proving a defendant’s guilt beyond a reasonable doubt affects
how an appellate court reviews the record for substantial evidence.” (Conservatorship of
O.B., supra, 9 Cal.5th at p. 1007.) In a criminal case, “‘the court must review the whole
record in the light most favorable to the judgment below to determine whether it discloses
substantial evidence such that a reasonable trier of fact could find the defendant guilty
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beyond a reasonable doubt.’” (Id. at p. 1008, italics added.) “Substantial evidence is
evidence that is ‘of ponderable legal significance,’ ‘reasonable in nature, credible, and of
solid value,’ and ‘“substantial’ proof of the essentials which the law requires in a
particular case.’” (Id. at p. 1005.) “And whether evidence is ‘of ponderable legal
significance’ [citation] cannot be properly evaluated . . . without accounting for the
heightened standard of proof that applied before the trial court.” (Ibid.)
Here, the trial court explained the beyond a reasonable doubt standard of
proof to the jury using the pattern instruction:
“The fact that a criminal charge has been filed against the defendant is not
evidence that the charge is true. You must not be biased against the defendant just
because he has been arrested, charged with a crime, or brought to trial.
“A defendant in a criminal case is presumed to be innocent. This
presumption requires that the People prove a defendant guilty beyond a reasonable doubt.

4
We were unable to locate any published criminal opinions citing Conservatorship of
O.B., supra, 9 Cal.5th 989. We are certifying this opinion for publication because it:
“Applies an existing rule of law to a set of facts significantly different from those stated
in published opinions[.]” (Cal. Rules of Court, rule 8.1105(c)(2).)

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Whenever I tell you the People must prove something, I mean they must prove it beyond
a reasonable doubt.
“Proof beyond a reasonable doubt is proof that leaves you with an abiding
conviction that the charge is true. The evidence need not eliminate all possible doubt
because everything in life is open to some possible or imaginary doubt.
“In deciding whether the People have proved their case beyond a
reasonable doubt, you must impartially compare and consider all the evidence that was
received throughout the entire trial. Unless the evidence proves the defendant guilty
beyond a reasonable doubt, he is entitled to an acquittal and you must find him not
guilty.” (CALCRIM No. 220.)

B. General Principles of Law
A defendant who commits a felony “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” is subject to enhanced sentencing.
(§ 186.22, subd. (b).) However, a “gang enhancement cannot be sustained based solely
on defendant’s status as a member of the gang and his subsequent commission of
crimes.” (People v. Ochoa (2009) 179 Cal.App.4th 650, 663.)
The gang enhancement authorizes a longer prison sentence, but only
when the underlying felony is “gang related.” (People v. Gardeley (1996) 14 Cal.4th
605, 621-622, overruled on other grounds in People v. Sanchez (2016) 63 Cal.4th
665.) “Not every crime committed by gang members is related to a gang.” (People v.
Albillar (2010) 51 Cal.4th 47, 60.)
The gang enhancement can be applied to a lone actor; however, appellate
courts have—with increasing frequency—reversed gang enhancements for insufficient
evidence when the defendant did not commit the underlying crime in concert with other
gang members. (See, e.g., People v. Perez (2017) 18 Cal.App.5th 598, 613-614

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[insufficient evidence where gang member acting alone shot students at a party]; People
v. Franklin (2016) 248 Cal.App.4th 938, 950 [insufficient evidence where crime of false
imprisonment was carried out in both gang and nongang territory and defendant’s fellow
gang members were unaware of the crime]; People v. Ramirez (2016) 244 Cal.App.4th
800, 819 [insufficient evidence where defendant displayed no gang signs and wore no
gang attire]; People v. Ochoa, supra, 179 Cal.App.4th at pp. 663-665 [insufficient
evidence where gang member committed carjacking by himself and expert testimony
alone connected the crime to the gang].)
Generally, “any person in this state who carries concealed upon the person
any dirk or dagger” may be prosecuted for the crime, which can be charged either as a
misdemeanor or a felony. (§ 21310, italics added.) The person does not have to
specifically intend to use the weapon. (People v. Rubalcava (2000) 23 Cal.4th 322, 331
[“the legislative history is clear and unequivocal: the intent to use the concealed
instrument as a stabbing instrument is not an element of the crime”].) Under section
21310, the phrase “upon the person” is “commonly understood to mean on the body or in
one’s clothing.” (People v. Hester (2020) 58 Cal.App.5th 630, 638.)
Within the context of the gang enhancement, the word “association” refers
to a connection or an association between the crime and the gang. (People v. Albillar
(2010) 51 Cal.4th 47, 62 [“defendants . . . committed these crimes in association with the
gang”]; People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [“several gang members
could commit a crime together, yet be on a frolic and detour unrelated to the gang”].)
Ordinarily, the opinion of a gang expert alone may provide substantial
evidence to sustain the elements of a gang enhancement. (People v. Vang (2011)
52 Cal.4th 1038, 1048-1049.) But the gang expert’s opinion must be “of ponderable
legal significance or of solid value.” (See People v. Wright (2016) 4 Cal.App.5th 537,
546.) “‘[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

8
finding that the crime was committed for the benefit of, at the direction of, or in
association with a criminal street gang.’” (People v. Ochoa, supra, 179 Cal.App.4th at
p. 657.)
“‘Substantial evidence includes circumstantial evidence and any reasonable
inferences drawn from that evidence.’ [Citation.] However, ‘[a] reasonable inference
may not be based on suspicion alone, or on imagination, speculation, supposition,
surmise, conjecture, or guesswork; a finding of fact must be an inference drawn from
evidence rather than a mere speculation as to probabilities . . . .’ [Citation.] ‘“‘By
definition, “substantial evidence” requires evidence and not mere speculation.’”’”
(People v. Grant (2020) 57 Cal.App.5th 323, 330.)

C. Relevant Testimony
After reviewing Deputy Ayala’s training and experience, the prosecution
posed the following “hypothetical” questions:
“[Prosecutor]: Now, first assume you have a Hispanic criminal street gang
called Varrio Viejo. Assume Varrio Viejo claims the entire city of San Juan Capistrano.
Assume that crimes such as assault with a deadly weapon, assault with force likely to
produce great bodily injury, robbery, felony vandalism, and narcotics sales are some of
the primary activities of Varrio Viejo.
“Now assume we have a male we will call active participant, who is a
member and active participant of Varrio Viejo and lives in Varrio Viejo claimed territory.
Now assume active participant is observed by law enforcement deputies with another
active participant and associate of Varrio Viejo near a common hangout/lookout location
for Varrio Viejo criminal street gang members. Assume that after he is followed, active
participant is searched, and loose, unsheathed in his pocket, is a four- to five-inch fixed-
blade dagger, loose and readily accessible, as well as two hypodermic needles which are
empty.

9
 “Now, two-part hypothetical: Part one, based on those facts in the
hypothetical alone, do you have an opinion as to whether or not the crime in the
hypothetical, possession of a concealed dagger, was committed either for the benefit of or
in association with or at the direction of a criminal street gang?
“[Ayala]: I do.
“[Prosecutor]: First of all, what is the basis of your opinion?
“[Ayala]: Based on the hypothetical, my training and experience,
reviewing police reports/court documents, speaking with past gang investigators,
speaking with members of the public and with gang members themselves.
“[Prosecutor]: Based upon all that, what is your opinion, then, as to
whether or not the hypothetical crime of possession of a dagger in gang territory was
done for the benefit of and in association with or at the direction of a criminal street
gang?
“[Ayala]: For the benefit of.
“[Prosecutor]: How so?
“[Ayala]: Gang members carry weapons. Not all the time, but when they
do carry weapons, it’s to facilitate the commission of crimes. We’ve heard about their
primary activities, assault with deadly weapons, stabbings. They carry weapons to help
facilitate those crimes. Helps to instill fear and intimidation within the community,
which prevents civilians from cooperating with law enforcement, which furthers their
criminal conduct.
“[Prosecutor]: And would you also consider it to be in association with?
“[Ayala]: Yes.
“[Prosecutor]: And is that because, in the hypothetical, the active
participant is with another associate and active participant?
“[Ayala]: Yes.

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 “[Prosecutor]: Now, the final portion of my hypothetical, last question for
you: Assuming the same facts of the hypothetical, do you have an opinion as to whether,
under the same circumstances, the crime of possession of a concealed dagger in gang
territory was done to either promote or further or assist criminal conduct by Varrio Viejo
gang members?
“[Ayala]: To promote.”

D. Application and Analysis
Speculative testimony by a gang expert does not constitute substantial
evidence to support a gang enhancement. (See, e.g., People v. Ramon (2009)
175 Cal.App.4th 843 (Ramon).) In Ramon, police stopped defendant while he was
driving a stolen truck. (Id. at p. 847.) Another gang member was sitting in the passenger
seat; police found a handgun under the driver’s seat. (Ibid.) The prosecution charged
defendant with receiving a stolen vehicle, three firearm offenses, and related gang
enhancements. (Id. at p. 848.) At trial, a gang expert testified police had stopped the
truck “in the heart of” the gang’s territory. “The territory is controlled through violence
and intimidation.” (Id. at p. 847.) The expert opined possessing a gun and driving a
stolen truck in gang territory benefitted the gang, and that the perpetrators of these
offenses intended to promote the gang. (Id. at pp. 847-848.) The expert testified stolen
trucks and firearms are “tools the gang need[s] to commit other crimes.” (Id. at p. 848.)
In Ramon, defendant argued the evidence was insufficient to support the
gang enhancement. (Ramon, supra, 175 Cal.App.4th at pp. 849-851.) The Court of
Appeal agreed: “The People’s expert simply informed the jury of how he felt the case
should be resolved. This . . . could not provide substantial evidence to support the jury’s
finding. There were no facts from which the expert could discern whether [defendant and
the other gang member] were acting on their own behalf the night they were arrested or
were acting on behalf of [their gang]. While it is possible the two were acting for the

11
benefit of the gang, a mere possibility is nothing more than speculation. Speculation is
not substantial evidence.” (Id. at p. 851.) The court also held that “[t]he facts on which
[the gang expert] based his testimony were insufficient to permit him to construct an
opinion about [defendant’s] specific intent.” (Id. at p. 852.) The court reasoned: “While
the People’s expert’s opinion certainly was one possibility, it was not the only possibility.
And . . . a mere possibility is not sufficient to support a verdict.” (Id. at p. 853.)
Here, like defendant in Ramon, supra, 175 Cal.App.4th at page 847,
Soriano is a gang member who was with another gang member in the heart of his gang’s
claimed territory when he was arrested. Deputy Ayala opined gang members carry
concealed weapons to “facilitate” the commission of other crimes. Ayala further opined
Soriano’s crime of carrying the concealed knife was for the benefit of, or in association
with, the Varrio Viejo gang. But there were no specific facts from which Ayala could
discern whether Soriano was acting on his own behalf, or whether he was acting on
behalf of his gang. For instance, there was no evidence Soriano and Ceja were displaying
gang signs or gang clothing when they were detained, or that Soriano’s gang tattoo on the
top of his head was visible to others. And although Soriano and Ceja were in their gang’s
territory when they were both detained, this fact is not particularly probative because that
is where they both lived. Consequently, as in Ramon, at page 851, Ayala “simply
informed the jury of how he felt the case should be resolved.”
Further, beyond Deputy Ayala’s opinion, there were no facts establishing
Soriano had the specific intent to promote the Varrio Viejo gang by carrying the
concealed knife. For example, if there was some evidence of recent hostilities with a
rival gang, it might be reasonable to infer Soriano possessed the weapon on the day of his
arrest for a specific gang purpose. But no such evidence was presented in this case.
Indeed, Soriano’s crime was carrying a concealed dirk or dagger on his person, which
does not require Soriano to have had the specific intent to use the concealed knife.

12
(§ 21310; see People v. Rubalcava, supra, 23 Cal.4th at p. 331 [“the intent to use the
concealed instrument as a stabbing instrument is not an element of the crime”].)
Deputy Ayala also opined Soriano’s crime was committed “in association
with” the Varrio Viejo gang because Ceja was with Soriano at the time they were
detained, and gang members “typically” tell other gang members when they are carrying
weapons. But the fact that Soriano was with another gang member does not establish that
the crime of carrying a concealed knife on his person was gang related. (See, e.g.,
Ramon, supra, 175 Cal.App.4th at pp. 847-848; see also People v. Morales, supra,
112 Cal.App.4th at p. 1198 [“several gang members could commit a crime together, yet
be on a frolic and detour unrelated to the gang”].) More importantly, Ayala’s opinion
regarding Soriano’s presumed conversation with Ceja about carrying the concealed knife
was based on “‘mere speculation as to probabilities’” rather than “reasonable inferences
drawn from’” observable facts. (See People v. Grant, supra, 57 Cal.App.5th at p. 330.)
Respectfully, Deputy Ayala’s opinion testimony on the whole lacks “‘solid
value’” or “‘ponderable legal significance,’” particularly when we take into account the
presumption of innocence and the heightened standard of proof in a criminal case:
beyond a reasonable doubt. (See Conservatorship of O.B., supra, 9 Cal.5th at p. 1008.)
The Attorney General argues People v. Garcia (2007) 153 Cal.App.4th
1499, supports a finding of substantial evidence in this case. We are not persuaded. In
Garcia, a jury convicted defendant of carrying an unlawful firearm and found true a gang
enhancement. (Id. at p. 1502.) On appeal, this court found substantial evidence to
sustain the enhancement. (Id. at p. 1512.) However, defendant testified at trial he needed
the gun for protection from rival gang members. (Id. at p. 1507.) Thus, Garcia is readily
distinguishable and does not alter our analysis of the instant case under the substantial
evidence standard of review. (See People v. Laudermilk (1967) 67 Cal.2d 272, 283 [“the
question as to what constitutes such substantial evidence . . . ‘cannot be answered by a
simple formula applicable to all situations’”].)

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 In sum, after reviewing the “whole record in a light most favorable to the
judgment below,” we hold that it does not contain “substantial evidence such that a
reasonable trier of fact could find” Soriano’s gang enhancement true “beyond a
reasonable doubt.’” (See Conservatorship of O.B., supra, 9 Cal.5th at p. 1008.)

III
DISPOSITION
Soriano’s gang enhancement is reversed. The matter is remanded for a new
sentencing hearing.

MOORE, ACTING P. J.

WE CONCUR:

THOMPSON, J.

GOETHALS, J.

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