P. v. Dean

Filed 12/16/16 P. v. Dean CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
LAMARR D. DEAN et al.,
Defendants and Appellants.
B258927
(Los Angeles County
Super. Ct. No. KA015038)
APPEALS from judgments of the Superior Court of Los
Angeles County, Juan Carlos Dominguez, Judge. Affirmed in
part as modified, reversed in part, and remanded with directions.
Patricia S. Lai, under appointment by the Court of Appeal,
for Defendant and Appellant Lamarr D. Dean.
Carlos Ramirez, under appointment by the Court of Appeal,
for Defendant and Appellant Kimaris Taylor.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant

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Attorney General, Victoria B. Wilson and Noah P. Hill, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________________
Lamarr Dean and Kimaris Taylor (collectively, defendants)
appeal from judgments entered after a jury found each of them
guilty of residential burglary and petty theft. The jury also found
Dean guilty of evading a police officer in willful disregard for
safety. The jury further found gang enhancement allegations to
be true as to the burglary (Dean and Taylor) and evading counts
(Dean). After finding prior conviction allegations to be true, the
trial court sentenced Dean to 18 years in prison. The court
sentenced Taylor to seven years in prison.
Defendants contend the trial court erred in denying their
Batson/Wheeler motion.1 They also challenge the true findings
on the gang enhancement allegations based on insufficiency of
the evidence. We reject these arguments.
As explained below, the trial court made sentencing errors
that require correction of the judgments against both defendants
and remand for resentencing as to Dean.
BACKGROUND
According to Detective Marc King’s trial testimony, in or
around 2009, the Los Angeles County Sheriff’s Department Major
Crimes Bureau created the Burglary-Robbery Task Force (the
task force) “[d]ue to the numerous residential burglaries
committed in the San Gabriel Valley.” The task force “target[ed]
serious burglars and robbers and the gang members that
commit[ted] these crimes.” Approximately 12 undercover
1 Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v.
Wheeler (1978) 22 Cal.3d 258 (Wheeler).

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detectives, two marked patrol units, and a surveillance aircraft
were assigned to the task force in March 2014, when defendants
committed the crimes at issue in this case.
The task force usually surveilled gang members from South
Los Angeles, who traveled to the San Gabriel Valley in two-to-
five-person “crews” in the morning or early afternoon to
burglarize unoccupied residential homes, searching for gold
jewelry, firearms and cash. When they committed the burglaries,
the suspects typically drove “high end” vehicles that had tinted
windows and were registered to other persons (not the suspects)
at addresses outside the residential area being burglarized. As
Detective King observed when he conducted surveillance for the
task force, the suspects would drive these vehicles around,
“casing” the neighborhood, stopping in front of various houses
until they found the one they wanted to burglarize.
Detective King, the “team leader” of the task force, was the
investigating officer on this case. On March 12, 2014, King and
his task force team (six undercover units and a surveillance
aircraft) were conducting surveillance in Covina after learning
that “several residential burglaries” had occurred in the area. At
approximately 11:30 a.m., King, who was alone in his unmarked
unit, observed a Porsche Cayenne sport utility vehicle with tinted
windows moving slowly through the neighborhood. One of his
team members ran the license plate, which revealed the vehicle
was registered to an address in Hawthorne, about 30 miles away
from Covina.
Detective King and his task force team members followed
the Porsche for 30 to 45 minutes as it moved through the
neighborhood. King testified that the Porsche “would stop in
front of a house. Nobody would get out. Pull into driveways.

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Stop. Back out again. Drive real slow and ultimately end up
[parked] in front of” the home where the burglary charged in this
case occurred.
The suspects, who were later identified as Dean and
Taylor, exited the Porsche and walked to the front door of the
house. Then they walked to the backyard and entered the house
through a sliding glass door. About 15 to 20 minutes after Dean
and Taylor made entry into the home, Detective King observed
them exit the front door of the house. Dean entered the driver
side of the Porsche, and Taylor the passenger side. Dean drove
away. Detective King entered the house, observed that it had
been “ransacked,” and instructed a marked patrol unit to stop the
Porsche.
A deputy pursuing the Porsche in a marked unit activated
the patrol car’s lights and sirens after the Porsche crossed a
double yellow line on a surface street and drove into oncoming
traffic. Dean did not stop the vehicle. Instead, he drove the
Porsche onto a freeway and reached speeds of 90 to 100 miles per
hour before exiting five miles later in San Dimas. He continued
to drive on surface streets until he crashed the Porsche into a
curb, damaging a wheel and rendering the vehicle inoperable.
Defendants exited the Porsche, each running in a different
direction, before deputies apprehended them and took them into
custody.
Deputies searched inside the Porsche and found two pairs
of gloves and a flashlight with the name “Joel” engraved on it.
One of the residents of the house defendants burglarized was
named Joel Ruiz. At trial, Joel’s wife, Margarita Ruiz, identified
the flashlight as the one missing from a bedroom dresser drawer
after the burglary. According to Mrs. Ruiz, the burglars also took

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seven gold bracelets from her daughter’s bedroom, $20 in cash
that was on top of a television in her bedroom, and her
grandson’s iPod.
The jury found defendants guilty of first degree residential
burglary (Pen. Code, § 459)2 and petty theft (§ 484, subd. (a)).
The jury found Dean guilty of evading a police officer in willful
disregard for safety. (Veh. Code, § 2800.2, subd. (a).) The jury
also found that defendants committed the burglary, and Dean
committed the evading offense, for the benefit of, at the direction
of, or in association with a criminal street gang with the specific
intent to promote, further, or assist in criminal conduct by gang
members, within the meaning of section 186.22, subdivision
(b)(1)(B). We will set forth below the evidence supporting the
gang enhancements (i.e., the gang expert’s testimony), in
reviewing defendants’ challenges to the sufficiency of the
evidence supporting the enhancements.
Dean waived his right to a jury trial on prior conviction
allegations set forth in the information. The trial court found
true the allegations that Dean had sustained a prior strike
conviction within the meaning of the “Three Strikes” law (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)), a prior serious felony
conviction within the meaning of section 667, subdivision (a)(1),
and had served two prior prison terms within the meaning of
section 667.5, subdivision (b).
The trial court sentenced Dean to 18 years in prison: the
middle term of four years for the burglary, doubled to eight years
under the Three Strikes law, plus a consecutive five-year term for
2 Statutory references are to the Penal Code unless
otherwise indicated.

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the gang enhancement, and a consecutive five-year term for the
prior serious felony enhancement (§ 667, subd. (a)(1)). The court
imposed and stayed a one-year term for each of the two prior
prison terms (§ 667.5, subd. (b)). For the offense of evading a
police officer, the court sentenced Dean to a concurrent term of
nine years: the middle term of two years for the offense, doubled
to four years under the Three Strikes law, plus a consecutive five-
year term for the gang enhancement. For the petty theft, the
court sentenced Dean to a concurrent term of six months in
county jail.
The trial court sentenced Taylor to seven years in prison:
the low term of two years for the burglary, plus a consecutive
five-year term for the gang enhancement. For the petty theft, the
court sentenced Taylor to a concurrent term of six months in
county jail.
DISCUSSION
Batson/Wheeler Motion
Defendants, African-American men, contend the trial court
erred in denying a Batson/Wheeler motion they made after the
prosecutor exercised her first peremptory challenge to excuse an
African-American woman (Juror No. 10), the only African-
American person on the panel of 50 potential jurors.
Applicable law
“Both the federal and state Constitutions prohibit any
advocate’s use of peremptory challenges to exclude prospective
jurors based on race. (Batson, supra, 476 U.S. at p. 97; Georgia v.
McCollum (1992) 505 U.S. 42, 59; Wheeler, supra, 22 Cal.3d at
pp. 276-277.) Doing so violates both the equal protection clause
of the United States Constitution and the right to trial by a jury
drawn from a representative cross-section of the community

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under article 1, section 16 of the California Constitution.” (People
v. Lenix (2008) 44 Cal.4th 602, 612.) “The Batson three-step
inquiry is well established. First, the trial court must determine
whether the defendant has made a prima facie showing that the
prosecutor exercised a peremptory challenge based on race.
Second, if the showing is made, the burden shifts to the
prosecutor to demonstrate that the challenges were exercised for
a race-neutral reason. Third, the court determines whether the
defendant has proven purposeful discrimination. The ultimate
burden of persuasion regarding racial motivation rests with, and
never shifts from, the opponent of the strike. [Citation.] The
three-step procedure also applies to state constitutional claims.”
(Id. at pp. 612-613.)
Defendants argue the trial court erred at the third stage of
the three-step inquiry, in finding the prosecutor excused Juror
No. 10 for race-neutral reasons and defendants did not prove
purposeful discrimination. At this third stage of the
Batson/Wheeler inquiry, “‘the issue comes down to whether the
trial court finds the prosecutor’s race-neutral explanations to be
credible.’” (People v. Lenix, supra, 44 Cal.4th at p. 613.) “Review
of a trial court’s denial of a Wheeler/Batson motion is deferential,
examining only whether substantial evidence supports its
conclusions. [Citation.] ‘We review a trial court’s determination
regarding the sufficiency of a prosecutor’s justifications for
exercising peremptory challenges “‘with great restraint.’”
[Citation.] We presume that a prosecutor uses peremptory
challenges in a constitutional manner and give great deference to
the trial court’s ability to distinguish bona fide reasons from
sham excuses. [Citation.] So long as the trial court makes a
sincere and reasoned effort to evaluate the nondiscriminatory

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justifications offered, its conclusions are entitled to deference on
appeal. [Citation.]’” (Id. at pp. 613-614.)
Proceedings below
In providing the required biographical information during
voir dire, Juror No. 10 stated she lived in Pomona, worked at a
text servicing agency, had never been married, had no children,
had never served on a jury, and had not answered “yes” to any of
the inquiries on the questionnaire the potential jurors completed.
During the prosecutor’s questioning of the potential jurors,
the prosecutor addressed Juror No. 10, stating, “We haven’t
heard anything from you much.” The prosecutor asked Juror No.
10 if she watched any “legal shows” on television, and Juror No.
10 responded affirmatively, listing the names of the shows she
had watched. The prosecutor then asked Juror No. 10 if she
“kn[e]w the difference between circumstantial evidence and
direct evidence based on what [she] watch[ed].” Juror No. 10
provided a definition of circumstantial evidence, and the
prosecutor responded: “Perfect. Exactly what it is.”
Then the prosecutor posed the following hypothetical about
another juror’s (Juror No. 11) dog named Sam: “Let’s say Sam is
kept in a backyard during certain times of the day. And let’s say
that you leave the house and you leave Sam out in the backyard.
Okay? And you go run an errand for about 20 minutes. And you
come home and you see that on the side of the house near the
fence that lead[s] to the street, there are doggie paws by the dirt.
And you see a hole has been dug by presumably the dog because
the dirt is kind of -- the pile of dirt is on the house side of the
fence, not leading out. And there’s no Sam. You go looking for
Sam. And you find Sam down the street hanging out with juror
number 12’s dog. [¶] . . . [¶] And you see that Sam has dirty

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paws, a dirty little nose there, and let me ask you, juror number
11, what’s the reasonable conclusion that you can make from
that?” Juror No. 11 expressed a desire for direct evidence, and an
initial hesitation to find the dog guilty of digging out of the yard
based only on circumstantial evidence, but ultimately agreed that
circumstantial evidence could support a guilty verdict.
The prosecutor asked Juror No. 10 for her “take on [the]
circumstantial evidence” posited in the hypothetical. Juror No.
10 responded: “It would be strong circumstantial evidence for
me. I would like the direct, you know, evidence. I would like
more of direct evidence.” The prosecutor asked Juror No. 10 for
her “ultimate verdict,” and Juror No. 10 responded that she
“would probably say not guilty” because “there was no proof that
the dog actually did it.” The prosecutor inquired about what
evidence Juror No. 10 would require to find the dog guilty. Juror
No. 10 stated: “Probably dirt samples,[3] and it’s kind of hard.
You would think that the dog’s normal behavior is to dig himself
out of the yard when the owner is gone. You know, it might have
been he might have just got out. And he didn’t actually dig the
hole or anything like that.” The prosecutor then asked: “What if
there is no evidence of any other evidence [sic] in the yard?”
Juror No. 10 responded: “That would be more guilty.” But she
continued to express a preference for additional evidence, stating:
“Maybe something on him other than dirt because dogs get dirty
all the time.”
3 Another potential juror had previously inquired whether
“soil samples” would be direct evidence in the hypothetical dog
case.

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Juror No. 8 also expressed concern about finding the dog
guilty based on the circumstantial evidence set forth in the
prosecutor’s hypothetical.
Shortly after the discussion about the hypothetical, the
prosecutor used her first peremptory challenge to remove Juror
No. 10. Defendants made a Batson/Wheeler motion. A lengthy
discussion between the parties and the trial court ensued
(covering 20 pages in the reporter’s transcript).
To establish a prima facie case of discrimination, defense
counsel pointed out that Juror No. 10 was the only African-
American person on the panel of 50 potential jurors. Taylor’s
counsel referenced a prior off-the-record, in-chambers discussion
between the parties and the trial court, and represented that the
prosecutor commented “that she felt that the prospective juror
[Juror No. 10] would be more likely to support these two
gentlemen [defendants] because they were Black, and she did not
want this prospective juror to be the mouthpiece for these two
Black gentlemen because she’s Black and they are Black.”
Taylor’s counsel also argued that the prosecutor “picked on” Juror
No. 10, asking questions about “circumstantial evidence versus
direct evidence” that were “not clear,” confused “a lot of the
jurors,” and to which there were “no right answer[s].”
The trial court commented that it recalled the off-the-
record discussion, during which the prosecutor requested the
court question the potential jurors about race and “allude[d]” to
Juror No. 10, specifically. The court had “no recollection of [the
prosecutor] saying that she believed that juror number 10 was
going to be the mouthpiece.” The court asked Dean’s counsel for
her recollection, and she stated she did not “recall that exact
statement,” but did recall the prosecutor “being concerned about

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race and that particular juror [Juror No. 10] in terms of her
favoring the defendants.”
Taylor’s counsel reminded the trial court that, in response
to the prosecutor’s alleged comment about Juror No. 10
advocating for defendants, she had explained to the prosecutor:
“It can cut both ways. I said, being the lone Black juror on the
jury she might feel pressure in not letting them go. She did not
want [sic] other jurors to feel she’s giving them an unfair
advantage.” The court acknowledged hearing Taylor’s counsel
make these comments during the off-the-record discussion, but
reiterated it did not hear the prosecutor make a comment about
Juror No. 10 advocating for defendants.
The trial court asked the prosecutor for her recollection of
the discussion. She responded: “My recollection is the court
asked us to come to chambers to see if there were any questions
that you would like for us to have the court address. I asked the
court to inquire about race in general initially. I said I would like
the court to inquire if anyone on the panel has either been the
victim of a crime where the defendants were African American,
and on the same token to inquire of juror number 10 regarding
her views regarding the defendants because they are Black and
she’s Black. Okay? I didn’t make any comments about being --
feeling that she was a mouthpiece for the defendants. But I did
ask the court to -- I wanted the court to flush out the notion of
race. I said it was the elephant in the room; that we have two
African American men committing a crime. It’s an issue that can

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be addressed.”4 Later in the hearing, the prosecutor added: “I
remember asking the judge to inquire of her [Juror No. 10]
regarding whether or not she would feel in any way like she
would not be able to convict based on race.”
The trial court indicated it believed defendants made a
prima facie case of discrimination, and asked the prosecutor to
respond. The prosecutor stated she removed Juror No. 10 for the
following reasons: “I did not like the response to the
hypothetical. She did clearly say that she wants more evidence.
She wouldn’t have convicted or found guilty based on
circumstantial evidence. She along with other jurors that I
intend to kick made the same comment. I have a circumstantial
case here. I really have no I.D. witnesses to the fact that these
defendants went into the home. There’s circumstantial evidence
that they were in the home and took things from inside. So I
don’t want to risk any juror that has an issue with circumstantial
evidence. Also, I do not like jurors who have no children and are
not married and do not have life experience. She’s young. I tend
to kick jurors who are young with no life experience. That’s
another reason I did not choose to keep her there. Also, I did not
like the way she was dressed and presented herself. I’m sorry.
To me that -- to me that’s a sign of lack of maturity. Low cut
clothing with sandals.[5] So for those reasons, Your Honor, I
chose to exercise a peremptory challenge.”
4 The trial court declined to question the potential jurors
about race, but did not preclude the prosecutor from making the
inquiry. The prosecutor chose not to do so.
5 The trial court noted it recalled the prosecutor mentioning
Juror No. 10’s clothing during the off-the-record discussion about

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After further discussion between the trial court and the
parties, the court denied defendants’ Batson/Wheeler motion,
finding the prosecutor “was not acting based on improper
motive.”
Analysis
The prosecutor presented the following reasons for
removing Juror No. 10: her hesitation to convict based on
circumstantial evidence, her lack of life experience, and clothing
indicating a lack of maturity. It is evident from the transcript of
the hearing that the trial court made “‘a sincere and reasoned
effort to evaluate the nondiscriminatory justifications offered.’”
(People v. Lenix, supra, 44 Cal.4th at p. 614.) The court found
that the prosecutor offered race neutral reasons for removing
Juror No. 10 and that those reasons were credible. The court’s
“‘conclusions are entitled to deference on appeal.’” (Ibid.) That
we might have reached a different conclusion if we were in the
trial court’s position is irrelevant. It is not our task to evaluate
credibility. Our task begins and ends with deciding whether
there is substantial evidence supporting the trial court’s
conclusions. There is. Juror No. 10 expressed a reluctance to
convict based on circumstantial evidence. That is a race neutral
reason for her removal.6
race. The court commented: “And that took me back a little bit.
I didn’t know what that [her clothing] had to do with race. It is
something that factors into her [the prosecutor’s] analysis.”
6 Defendants ask this court to conduct a comparative juror
analysis between Juror No. 10 and jurors the prosecutor did not
remove. Such an analysis is not helpful to defendants’ cause
because no seated juror appears to share all of the characteristics
the prosecutor articulated as reasons for removing Juror No. 10.

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Gang Enhancements
Defendants contend there was insufficient evidence
supporting the jury’s true findings on the gang enhancement
allegations.
“In reviewing a challenge to the sufficiency of evidence, ‘the
reviewing court must consider the evidence in a light most
favorable to the judgment and presume the existence of every fact
the trier could reasonably deduce from the evidence in support of
the judgment. The test is whether substantial evidence supports
the decision, not whether the evidence proves guilt beyond a
reasonable doubt.’ [Citation.] We consider whether a rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. [Citations.] To prove a gang
allegation, an expert witness may testify about criminal street
gangs.” (People v. Romero (2006) 140 Cal.App.4th 15, 18.)
“The gang enhancement applies to one 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.’
(Pen. Code, § 186.22, subd. (b)(1).) ‘In addition, the prosecution
must prove that the gang (1) is an ongoing association of three or
more persons with a common name or common identifying sign or
Even Juror No. 11, who was single, had no children and no prior
jury experience, is not an apt comparison because Juror No. 11
ultimately agreed that circumstantial evidence could support a
guilty verdict, while Juror No. 10 continued to hold out for direct
evidence. We note the prosecutor removed Juror No. 8 who, like
Juror No. 10, continued to express concern about finding the dog
guilty based on the circumstantial evidence in the prosecutor’s
hypothetical, as set forth above.

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symbol; (2) has as one of its primary activities the commission of
one or more of the criminal acts enumerated in the statute; and
(3) includes members who either individually or collectively have
engaged in a “pattern of criminal gang activity” by committing,
attempting to commit, or soliciting two or more of the
enumerated offenses (the so-called “predicate offenses”) during
the statutorily defined period.’” (People v. Sanchez (2016) 63
Cal.4th 665, 698.)7
Between them, defendants challenge the sufficiency of the
evidence establishing (1) a criminal street gang, (2) the requisite
number of predicate offenses to demonstrate a pattern of criminal
gang activity, (3) the primary activities of the gang, and (4) that
defendants committed the charged offenses for the benefit of, at
the direction of, or in association with any criminal street gang,
within the meaning of section 186.22, subdivision (b)(1).
Criminal street gang/predicate offenses
The prosecution presented expert testimony from Joshua
White, a Los Angeles Police Department officer in the 77th Street
Division Gang Enforcement Detail, whose assignment was to
monitor the Brims gang. He knew Dean as an active Six Deuce
Brims gang member, known by the moniker “Deuce Capone.” He
knew Taylor as an active Van Ness Gangster (VNG) Brims gang
member, known by the moniker “Snatch ‘Em Up.”
Defendants argue there was insufficient evidence of a
“criminal street gang” within the meaning of the gang
enhancement under section 186.22, subdivision (b)(1)(B), because
7 The prosecution may use the residential burglary charged
in this case as one of the two predicate offenses. (People v. Loeun
(1997) 17 Cal.4th 1, 10.)

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the prosecution did not establish Dean, a Six Deuce Brims gang
member, and Taylor, a VNG Brims gang member, were members
of the same gang, the Brims gang. In a related argument, Taylor
argues that predicate offenses committed by Six Deuce Brims
gang members do not establish a pattern of gang activity
supporting a gang enhancement as to him because he is a VNG
Brims gang member. For the reasons set forth below, we reject
these arguments and find substantial evidence supports the
criminal street gang and pattern of gang activity elements of the
gang enhancements found against both Dean and Taylor.
According to Officer White, the Brims gang was originally
called “the L.A. Brims.” As the gang expanded, its members
began to identify themselves by geographic area, or subsets of the
larger Brims gang. White used a photograph of gang graffiti to
illustrate that the various sets of Brims are part of one larger
gang. In the photograph, the letters “FHN” represented three
sets of Brims—the Fruit Town Brims, the Six Deuce Harvard
Park Brims and the VNG Brims—all falling under the Brims
“umbrella.” White explained that it was common for a Brims
gang member from one set (e.g., Six Deuce Brims) to display the
particular gang sign of another Brims set (e.g., VNG Brims)
because the various sets were united as one Brims gang. For
example, White referred to a photograph of defendant Dean, a Six
Deuce Brims gang member, displaying the VNG hand sign while
at a park in VNG territory. White identified a particular man as
the leader of the larger Brims gang. The prosecution presented
substantial evidence showing that Six Deuce Brims and VNG
Brims (with about 200 members combined as of March 2014)
associated daily as part of one larger Brims gang. Thus,
predicate offenses committed by Six Deuce Brims gang members

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support the pattern of gang activity element of the gang
enhancement as to Taylor, a VNG Brims gangs member.
Primary activities of the gang
Dean contends the prosecution failed to present sufficient
evidence supporting the primary activities element of the gang
enhancements. We disagree.
Based on his experience as a gang officer assigned to
monitor the Brims gang, Officer White testified that the primary
activities of the Brims gang are “robberies, residential burglaries,
home invasion robberies, assault with deadly weapons, attempted
murder, all the way up to murder,” crimes that satisfy the
primary activities element of the gang enhancement. With
respect to robberies, home invasion robberies and burglaries,
White testified that Brims gang members engaged in these
primary activities “repeatedly and consistently.” Defendants did
not object to this testimony at trial. White’s testimony is
sufficient to establish the primary activities element of the gang
enhancements. (People v. Sengpadychith (2001) 26 Cal.4th 316,
324.)
Moreover, Dean and Taylor, Brims gang members,
committed a residential burglary in this case. The prosecution
presented evidence of a gang-related residential burglary
committed by two Six Deuce Brims gang members, Demonte
Sears and Deandre Johnson.8
8 The prosecution also presented evidence of a residential
burglary committed by Matthew Demondre. White identified
Demondre as a VNG Brims gang member, based on information
he received from other officers. At trial, defendants objected to
White’s identification of Demondre as a VNG Brims gang
member on hearsay grounds. On appeal, they challenge this

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Officer White testified that some Brims gang members
wore Hollister brand clothing, which had a logo depicting a small
bird. He explained: “It’s known as flocking. They’re getting the
tattoos and wearing the clothing of the bird and letting other
members know in the gang that they’re going out and doing
residential burglaries and being part of a flocking crew, and it’s
common now to see that in the clothing.”
Substantial evidence supports the primary activities
element of the gang enhancements.
Evidence defendants committed the crimes for the
benefit of, at the direction of, or in association with a
criminal street gang
Defendants challenge the sufficiency of the evidence
establishing they committed the offenses for the benefit of, at the
direction of, or in association with a criminal street gang.
Detective King, the leader of a task force targeting gang-
related robberies and burglaries, testified regarding the
residential burglaries committed in the San Gabriel Valley by
gang members. The residential burglary committed by Dean and
Taylor, two Brims gang members, fits the pattern described by
King—gang members from South Los Angeles, traveling to the
San Gabriel Valley in a high-end vehicle with tinted windows
registered to another person at an address outside the area (in
this case, Hawthorne), searching for jewelry and cash.
testimony as a violation of their rights to confrontation. We need
not address the merits of this contention because any error would
be harmless beyond a reasonable doubt. The prosecution
satisfied the predicate acts and primary activities elements of the
gang enhancements without Demondre’s offense.

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Based on a hypothetical predicated on the facts of this case,
Officer White opined that the hypothetical burglary was
committed for the benefit of the gang because, in his experience
as a gang officer, gang members who commit these types of
residential burglaries together typically do so to raise money to
benefit the gang.
To prove the gang enhancement allegations, the
prosecution was not required to establish Dean and Taylor
committed the crimes for the benefit of the Brims gang. The
prosecution could satisfy this element by establishing Dean and
Taylor committed the offenses in association with the Brims
gang. “A trier of fact can rationally infer a crime was committed
‘in association’ with a criminal street gang within the meaning of
section 186.22, subdivision (b) if the defendant committed the
offense in concert with gang members.” (People v. Leon (2016)
243 Cal.App.4th 1003, 1021.) It “is conceivable that several gang
members could commit a crime together, yet be on a frolic and
detour unrelated to the gang.” (People v. Morales (112
Cal.App.4th 1176, 1198; People v. Weddington (2016) 246
Cal.App.4th 468, 484 [“the first prong—that the underlying
offense was ‘gang-related’”— “may be established with
substantial evidence that two or more gang members committed
the crime together, unless there is evidence that they were ‘on a
frolic and detour unrelated to the gang’”].) Here, however, there
was no evidence of such a frolic and detour unrelated to the
Brims gang. Moreover, “if substantial evidence establishes that
the defendant intended to and did commit the charged felony
with known members of a gang, the jury may fairly infer that the
defendant had the specific intent to promote, further, or assist

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criminal conduct by those gang members.” (People v. Albillar
(2010) 51 Cal.4th 47, 68.)
Substantial evidence demonstrates defendants, two Brims
gang members, assisted each other in committing a residential
burglary, which bore the hallmarks of other gang-related
residential burglaries committed in the San Gabriel Valley (as
described by Detective King and summarized at the beginning of
this section). Dean committed the evading offense so that he and
Taylor could continue their criminal conduct (taking away the
loot). The prosecution presented sufficient evidence showing
Dean and Taylor committed the charged offenses in association
with a criminal street gang with the specific intent to promote,
further, or assist in any criminal conduct by gang members.
Sentencing Errors
Defendants contend, and the Attorney General concedes,
the trial court erred in imposing a concurrent term for the petty
theft in count 4. We agree. The court should have imposed and
stayed the sentence for petty theft under section 654, which “has
been held to preclude punishment for both burglary and theft
where, as in this case, the burglary is based on an entry with
intent to commit that theft.” (People v. Alford (2010) 180
Cal.App.4th 1463, 1468.) We will direct the trial court to stay
defendants’ sentences for petty theft.
Dean contends, the Attorney General concedes, and we
agree, the trial court erred in imposing a five-year term for the
gang enhancement on count 2 because the offense charged in
count 2 (evading a police officer in willful disregard for safety) is
not a serious felony as required for imposition of the five-year
term under section 186.22, subdivision (b)(1)(B). Dean and the
Attorney General agree the appropriate remedy is remand for

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resentencing under section 186.22, subdivision (b)(1)(A), which
provides a two, three or four-year term for a gang enhancement
on a count that is not a serious or violent felony. We also agree,
and will remand the matter for resentencing as to Dean.
Taylor contends, and the Attorney General agrees, that the
judgment against Taylor must be corrected to reflect the trial
court’s imposition of a five-year enhancement term on count 1
(burglary) under section 186.22, subdivision (b)(1)(B), not section
12022.1, as the judgment erroneously indicates. We also agree.
At the sentencing hearing, the trial court imposed a five-year
consecutive term on count 1 for the gang enhancement under
section 186.22, subdivision (b)(1)(B). The court dismissed the bail
enhancement allegation under section 12022.1, because the
district attorney did not present evidence supporting the
allegation. We will direct the trial court to correct the judgment
against Taylor to reflect the imposition of the five-year
enhancement under section 186.22, subdivision (b)(1)(B).
The Attorney General argues, and Dean does not dispute,
that the trial court awarded Dean four days of actual presentence
custody credit to which he was not entitled. The Attorney
General is correct. Dean was arrested on March 12, 2014, and
sentenced 177 days later, on September 4, 2014. The trial court,
however, awarded Dean 181 days of actual presentence custody
credit and 180 days of local conduct credit. We will direct the
trial court to correct the judgment to reflect that Dean is awarded
177 days of actual presentence custody credit, and 176 days of
local conduct credit, for a total of 353 days of presentence credit
(the same amount the trial court awarded Taylor, who was
arrested and sentenced on the same dates as Dean).

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The Attorney General also argues, and Dean does not
dispute, that the trial court erred in imposing and staying the
two one-year prior prison term enhancements. The Attorney
General is correct. With respect to the prior prison term
enhancement arising out of case number TA115034, the court
should have struck the enhancement because the court already
used the conviction in case number TA115034 to impose the five-
year prior serious felony enhancement under section 667,
subdivision (a)(1). (People v. Jones (1993) 5 Cal.4th 1142, 1144-
1145 [a prison sentence may not “be enhanced both for a prior
conviction and for a prison term imposed for that conviction”].)
With respect to the prior prison term enhancement arising out of
case number BA368316, the court was required to impose the
enhancement or dismiss it with a statement of reasons under
section 1385. (People v. Langston (2004) 33 Cal.4th 1237, 1241
[“Once the prior prison term is found true within the meaning of
section 667.5(b), the trial court may not stay the one-year
enhancement, which is mandatory unless stricken”].) We will
remand the matter for the trial court to strike or impose the one-
year prior prison term enhancement arising out of case number
BA368316.
Independent Review of Trial Court’s In Camera Hearing
The parties have asked this court to independently review
the sealed transcript from the July 15, 2014 in camera hearing on
the district attorney’s ex parte application under Evidence Code
section 1040 to protect certain information from disclosure. We
have independently reviewed the matter and conclude the trial
court properly exercised its discretion in ruling on the motion.
(People v. Haider (1995) 34 Cal.App.4th 661,664-665, 669 [we

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review trial court’s ruling on motion to protect privilege under
Evidence Code section 1040 for abuse of discretion].)
DISPOSITION
As to Dean, the matter is remanded for the trial court (1) to
strike the gang enhancement under section 186.22, subdivision
(b)(1)(B), on count 2 for evading a police officer with willful
disregard for safety; (2) to impose the gang enhancement under
section 186.22, subdivision (b)(1)(A), on count 2 for evading a
police officer with willful disregard for safety and to sentence
Dean for that enhancement, (3) to impose or strike the one-year
prior prison term (§ 667.5, subd. (b)) for case number BA368316,
(4) to stay the sentence imposed on count 4 for petty theft, and (5)
to correct his presentence custody credits to reflect 177 days of
actual presentence custody credit, and 176 days of local conduct
credit, for a total of 353 days of presentence credit.

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As to Taylor, the trial court is ordered to correct the
judgment to reflect that the sentence imposed on count 4 for petty
theft is stayed and that the five-year enhancement term on count
1 for residential burglary was imposed under section 186.22,
subdivision (b)(1)(B), not section 12022.1. The clerk of the
superior court is directed to prepare an amended abstract of
judgment as to Taylor and to forward it to the Department of
Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
LUI, J.

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