IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
CRISTIAN RENTERIA,
Defendant and Appellant.
S266854
Fifth Appellate District
F076973
Tulare County Superior Court
VCF304654
August 25, 2022
Justice Kruger authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,
Groban, Jenkins, and Guerrero concurred.
PEOPLE v. RENTERIA
S266854
Opinion of the Court by Kruger, J.
Late one August night, Cristian Renteria walked through
a neighborhood in Tulare and fired a gun at a house. Then, after
a dog barked next door, Renteria fired the gun at that house,
too. For this episode — which fortunately did not result in any
injuries — a jury convicted Renteria of two counts of shooting at
an inhabited dwelling. (Pen. Code, § 246.) That offense is
ordinarily punishable by no more than seven years of
imprisonment. (Ibid.) But the prosecution alleged that
Renteria was subject to indeterminate life terms for the
shootings because he committed the crimes “for the benefit of
. . . any criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members.”
(Id., former § 186.22, subdivision (b)(4).) While Renteria was a
gang member, there was no evidence he was accompanied by
any other gang members at the time of the shooting. The jury
nonetheless found the gang allegation true, and Renteria was
sentenced to two indeterminate terms of life imprisonment.
Renteria challenged the gang penalties as unsupported by
the evidence, but the Court of Appeal affirmed, relying on an
expert’s testimony that a gang member’s acts of violence both
benefit the gang and promote its members’ criminal activities by
enhancing the gang’s reputation for violence in the community.
We granted review to address the showing the prosecution
must make to establish that Penal Code section 186.22 gang
enhancements or penalties apply to a crime committed by a gang
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Opinion of the Court by Kruger, J.
member who acts alone. Not every crime committed by an
individual gang member is for the gang’s benefit or to promote
criminal conduct by gang members, as the gang enhancement
statute requires in such cases; gang members can, of course,
commit crimes for their own purposes. Without more, expert
testimony about the reputational benefits of crime does not
support an inference that a lone gang member committed a
crime for gang-related reasons — as opposed to acting from
other, more personal motives. Because there was no adequate
basis for drawing the necessary inference about Renteria’s
intent in this case, we reverse the judgment of the Court of
Appeal and remand for resentencing.
I.
Because this case concerns the sufficiency of the evidence
supporting the gang penalties, we review the trial evidence in
some detail. Evidence concerning the circumstances of the
shootings came largely from the testimony of a neighbor,
Anthony A.1 Earlier on the evening of the shooting, Anthony
became aware of a group of young men walking through an
empty field near his house; he heard some of them yelling “Sur
trece,” a gang reference. Anthony went outside to tell the young
men he did not want any problems and recognized Renteria
among them. Renteria told Anthony that a couple of his
companions were drunk and he was trying to help them home.
A “little while” later, Anthony heard a “pop” in the field, went
back outside, and saw Renteria and a person he did not
recognize walk past. Anthony lost sight of the two for “at least
1
We identify the witnesses as they were identified in the
opinion of the Court of Appeal. (See Cal. Rules of Court, rule
8.90(b).
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Opinion of the Court by Kruger, J.
one or two minutes,” and then saw Renteria return and shoot at
the house of Anthony’s neighbor Jack D. After the first shots,
dogs from the house next to Jack’s began barking. Renteria then
shot at that house before shooting again at Jack’s and running
away.
A few days after the shooting, Officer Jacob Adney
arrested Renteria. Earlier police contacts with Renteria
indicated that he admitted being a Sureño2 gang member in
2008, when he was in middle school, and had been detained in
2011 on suspicion of spray painting gang-related graffiti in an
abandoned house. After his 2014 arrest for the current offense,
Renteria again admitted belonging to a Sureño gang. Renteria
also acknowledged that earlier the day of the shooting he had
been “hit up” — someone asked where he was from, a question
understood to be a gang challenge. When Renteria heard what
sounded like a shotgun being racked, he ran. Renteria assumed
Northern gang members were responsible.
Jack D. testified that he lived with his wife and four
grandsons and that neither his children nor grandchildren were
involved in any gangs. An officer investigating the shooting
noticed bullet holes in Jack’s garage door and opened it to see if
anyone was injured. No one was inside, but the officer saw a
sawed-off shotgun in the garage.
Officer Adney testified as a gang expert. He explained
that in gang culture, respect is everything and that gang
members are expected to retaliate if they are the victim of a
2
At trial, counsel and the witnesses used “Southerner” and
the Spanish “Sureño” interchangeably to signify a member of
the gang. Similarly, they used “Northerner” and “Norteño” to
signify the rival gang.
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PEOPLE v. RENTERIA
Opinion of the Court by Kruger, J.
crime, otherwise they lose their respect. Officer Adney believed
that a crime committed by a gang member would benefit or
promote the gang, even if the victim were not a rival gang
member, because people would see a gang crime in the news and
would be reluctant to cooperate with the police or testify against
the gang. Officer Adney said that unless gang members identify
their gang during a crime, “[t]here’s really no way — it’s kind of
hard to know which gang — if it is a gang, which gang is
responsible.”
Officer Adney explained that Northerners are rivals of
Southerners and the two groups typically fight over territory.
But unlike in other regions where gangs control specific
territory with defined boundaries, in Tulare County a gang
member’s turf “is simply where that person lives at that time.”
Southerners identify with the number 13 and the words
Anthony heard — “sur” and “trece” — mean “south” and “13” in
Spanish. The prosecutor tried to elicit Officer Adney’s opinion
that some of Jack’s grandsons were Northerners, but that
opinion was not forthcoming. Officer Adney instead testified to
a different connection: that a man named Robert P. did not live
with Jack but was “associated” with the residence and that
Adney had personally seen Robert in the company of
Northerners. Officer Adney opined that a person who had been
threatened by Northerners and who shot at the houses while
yelling “Sur trece” would be showing that he was retaliating,
thus elevating his own status in the gang and enhancing the
gang’s status and ability to intimidate residents of the
neighborhood.
The jury found the gang allegation true for both counts of
shooting an inhabited dwelling — that is, both for shooting at
Jack’s house and for shooting at the house next door with the
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Opinion of the Court by Kruger, J.
barking dogs.3 On each count Renteria received a sentence of
three years under Penal Code section 246 and was subject to a
15-year-to-life gang penalty under Penal Code section 186.22,
subdivision (b)(4)(B).4 The gang penalty in turn rendered
Renteria eligible for a 20-year sentence enhancement for
personally and intentionally discharging a firearm in the
commission of a felony punishable by life imprisonment. (See
Pen. Code, § 12022.53, subds. (a)(17), (c).) The court sentenced
Renteria to two consecutive terms of 23 years to life.
On appeal, Renteria argued, among other things, that
there was insufficient evidence to support the gang allegations.
A divided Court of Appeal rejected this challenge and affirmed
the gang penalties. (People v. Renteria (Jan. 5, 2021, F076973
[nonpub. opn.].) Although the majority opinion noted that an
unidentified companion may have been with Renteria at the
time of the shootings, the court assumed that Renteria was not
acting in association with or at the direction of another gang
member. The court nonetheless determined there was sufficient
evidence to satisfy both prongs of the gang enhancement
3
The prosecution also charged Renteria with grossly
negligent discharge of a firearm for an incident that occurred
the previous evening, but the jury acquitted Renteria on this
count.
4
“As we have previously explained, a sentence
enhancement adds ‘ “an additional term of imprisonment to the
base term,” ’ while an alternate penalty like section 186.22(b)(4
‘ “provides for an alternate sentence when it is proven that the
underlying offense has been committed for the benefit of, or in
association with, a criminal street gang.” ’ [Citation.] Both
types of provisions differ from substantive offenses in that they
do not ‘ “define or set forth elements of a new crime.” ’ ” (People
v. Lopez (2022) 12 Cal.5th 957, 962, fn. 4.
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Opinion of the Court by Kruger, J.
statute, Penal Code section 186.22, subdivision (b) (section
186.22(b)).5
As evidence the shootings were committed “for the benefit”
of the Sureño gang (§ 186.22(b)), the court cited Officer Adney’s
testimony that the shootings would benefit the gang, even if the
shootings had not been committed against rival gang members.
It further cited evidence that Jack’s house had “at least some
link to Norteños, even if it was not a hotbed of rival gang
activity”; Renteria’s statement to Officer Adney that he thought
he had been “ ‘hit up’ ” by Northerners; and Anthony’s testimony
that he was tired of “ ‘issues’ ” in the neighborhood.
As for Renteria’s “intent to promote, further, or assist” the
“criminal conduct by gang members” (§ 186.22(b)), the court
cited People v. Hill (2006) 142 Cal.App.4th 770, 774 for the
proposition that Renteria’s intent to promote his own criminal
conduct, in the form of the current offenses, sufficed. But
acknowledging another court’s admonition that the charged
5
The alternate penalty provision that applied to Renteria,
section 186.22(b)(4), provides for an indeterminate life term for
particular enumerated felonies, including shooting at an
inhabited dwelling. Section 186.22(b)(1) applies to other
felonies and imposes a sentence enhancement of lesser,
determinate terms. Both subdivisions, however, contain the
identically worded requirement that the felony be committed for
the benefit of the gang and to promote the criminal conduct of
its members. We therefore use the shorthand “section
186.22(b)” or “gang enhancement statute” in discussing the
felony requirements at issue here and refer to those
requirements generally as “enhancement provisions.”
Assembly Bill No. 333 (2021–2022 Reg. Sess.) has since
amended some of these requirements. (See fn. 6, post.) Unless
otherwise noted, we refer to the law as it existed at the time of
Renteria’s conviction.
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PEOPLE v. RENTERIA
Opinion of the Court by Kruger, J.
offense and gang membership alone are insufficient to satisfy
this aspect of the gang enhancement statute, the court went on
to explain why the evidence showed more than that. The court
cited Officer Adney’s testimony that a Sureño who is a victim of
a crime is required to respond; that “[s]howing one is willing to
put in work for the gang and be violent elevates that person’s
status within the gang and the status of the gang as a whole”;
and “[i]ntimidation of witnesses and the community increases
the gang’s control of territory.” Here, the court reasoned, a
reasonable jury could infer that Renteria intended for the
shootings to intimidate rival gang members and neighborhood
residents, “thus facilitating future crimes committed by himself
and his fellow gang members.” A jury could also infer that
shooting Jack’s house was retaliation for getting “ ‘hit up,’ ” and
was meant “as a means of recouping respect” for Renteria and
for the gang. Finally, the jury could conclude that Renteria shot
at the house next door to intimidate possible witnesses, quiet
the dogs, and facilitate escape, “thereby furthering his gang’s
reputation and control of contested territory, and his own gang-
motivated criminal conduct.”
Justice Smith wrote a partial dissent. (People v. Renteria,
supra, F076973 (conc. & dis. opn. of Smith, J.).) Justice Smith
noted, among other things, that the record did not support the
conclusion that the shooter had shouted “Sur trece” at the time
of the shooting. It was, however, based on that incorrect
assumption that Officer Adney opined that the shootings
benefited the Sureño gang. Without that unsupported
assumption, Justice Smith concluded, Adney’s opinion was
“ultimately irrelevant and of no help to the jury,” leaving
insufficient evidence to support the gang penalties.
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PEOPLE v. RENTERIA
Opinion of the Court by Kruger, J.
After we granted review in this case, the Legislature
enacted Assembly Bill No. 333 (2021–2022 Reg. Sess.), which
narrowed the scope of section 186.22(b) enhancement provisions
in several respects. (Assem. Bill No. 333 (2021–2022 Reg. Sess.
(Assembly Bill 333); see Stats. 2021, ch. 699, § 3.)6 Although the
6
Assembly Bill 333 has made several noteworthy changes
to the law governing gang enhancements and penalties. First,
Assembly Bill 333 “narrows the definition of ‘ “criminal street
gang” ’ to ‘an ongoing, organized association or group of three or
more persons, whether formal or informal, having as one of its
primary activities the commission of one or more [enumerated
criminal acts], having a common name or common identifying
sign or symbol, and whose members collectively engage in, or
have engaged in, a pattern of criminal gang activity.’ (Assem.
Bill 333, § 3; [Pen. Code,] § 186.22, subd. (f), [as amended by
Stats. 2021, ch. 699, § 3,] eff. Jan. 1, 2022, italics added.)”
(People v. Lopez (2021) 73 Cal.App.5th 327, 344.) Assembly Bill
333 also increases the prosecution’s burden of proof by
“alter[ing] the requirements for proving the ‘pattern of criminal
gang activity’ necessary to establish the existence of a criminal
street gang.” (Lopez, at p. 345; see Pen. Code, § 186.22,
subd. (e), as amended by Stats. 2021, ch. 699, § 3, eff. Jan. 1,
2022.) Among other things, Assembly Bill 333 requires that the
predicate offenses used to demonstrate a pattern of criminal
gang activity must have “ ‘commonly benefited a criminal street
gang’ ” where the “ ‘common benefit . . . is more than
reputational.’ ” (Lopez, at p. 345; see Pen. Code, § 186.22,
subd. (e)(1), as amended by Stats. 2021, ch. 699, § 3, eff. Jan. 1,
2022.
As particularly relevant to the issues addressed in this
opinion, Assembly Bill 333 also includes a provision stating that,
as used in the Street Terrorism Enforcement and Prevention Act
(Pen. Code, § 186.20 et seq.), “to benefit, promote, further, or
assist means to provide a common benefit to members of a gang
where the common benefit is more than reputational. Examples
of a common benefit that are more than reputational may
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PEOPLE v. RENTERIA
Opinion of the Court by Kruger, J.
parties agree Assembly Bill 333 applies retroactively to nonfinal
cases, they disagree about the effect of Assembly Bill 333 on the
gang penalties imposed on Renteria in this matter. We do not
resolve this dispute because we conclude the evidence was not
sufficient to sustain the gang penalties even under the law in
effect at the time of Renteria’s trial.
II.
The gang enhancement statute was enacted in 1988 as
part of the Street Terrorism Enforcement and Prevention Act
(STEP Act, or Act). (Pen. Code, § 186.20 et seq.; see People v.
Gardeley (1996) 14 Cal.4th 605, 609.) Finding that crimes
committed by members of violent street gangs “present a clear
and present danger to public order and safety,” the Legislature
aimed to eradicate criminal gang activity “by focusing upon
patterns of criminal gang activity and upon the organized
nature of street gangs, which together, are the chief source of
terror created by street gangs.” (Pen. Code, § 186.21.
The gang enhancement provisions provide one of two
primary means by which the STEP Act punishes criminal gang
activity. The first, codified in Penal Code section 186.22,
subdivision (a) (section 186.22(a)), consists of “a substantive
include, but are not limited to, financial gain or motivation,
retaliation, targeting a perceived or actual gang rival, or
intimidation or silencing of a potential current or previous
witness or informant.” (Pen. Code, § 186.22, subd. (g), as
amended by Stats. 2021, ch. 699, § 3, eff. Jan. 1, 2022.
Because of our resolution of the case, we do not here
address any question about the effect of these amendments on
Renteria’s sufficiency of the evidence challenge; we instead focus
on the law as it existed before the enactment of Assembly Bill
333.
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PEOPLE v. RENTERIA
Opinion of the Court by Kruger, J.
offense” punishing “ ‘[a]ny 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 . . . .’ ” (People v.
Rodriguez (2012) 55 Cal.4th 1125, 1130 (plur. opn.) (Rodriguez),
quoting § 186.22(a).) The gang enhancement provisions, by
contrast, codified in section 186.22(b), prescribe sentence
enhancements or alternate penalties of varying length for “any
person who is convicted of a felony 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.” (§ 186.22(b)(1); see id.,
subd. (b)(4).
The substantive offense and enhancement provisions
“strike at different things.” (Rodriguez, supra, 55 Cal.4th at
p. 1138 (plur. opn.).) “[W]ith section 186.22(a), the Legislature
sought to punish gang members who acted in concert with other
gang members in committing a felony regardless of whether
such felony was gang related.” (Rodriguez, at p. 1138, citing
People v. Albillar (2010) 51 Cal.4th 47, 55 (Albillar).) Thus, as
we held in Rodriguez, section 186.22(a) does not reach the
conduct of a gang member acting alone. (Rodriguez, at p. 1132.
The enhancements provisions prescribed by section 186.22(b
are, by contrast, designed to punish “gang-related conduct.”
(Rodriguez, at p. 1138.) The Courts of Appeal have uniformly
held, and the parties here agree, this includes the gang-related
conduct of an individual who acts alone. (See id. at pp. 1138–
1139 (plur. opn.); id. at pp. 1140–1141 (conc. opn. of Baxter, J.);
People v. Rios (2013) 222 Cal.App.4th 542, 546; People v. Soriano
(2021) 65 Cal.App.5th 278, 285.
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PEOPLE v. RENTERIA
Opinion of the Court by Kruger, J.
Our prior cases addressing the gang enhancement statute
for the most part have concerned the conduct of individuals
acting in concert with other gang members, however. (E.g.,
Albillar, supra, 51 Cal.4th at p. 61; People v. Gardeley, supra, 14
Cal.4th at p. 619.) The distinction is important, because, as we
recognized in Albillar, the joint nature of the alleged conduct
frequently affects the type of evidentiary showing that is
sufficient to demonstrate the conduct was gang-related and
committed to promote the criminal activity of gang members, as
section 186.22 requires.
The question in Albillar concerned the sufficiency of the
evidence supporting gang enhancements for a forcible rape and
other sex offenses perpetrated by gang members acting in
concert. Upholding the enhanced sentences, we explained that
the Legislature required the underlying felony be committed for
the benefit of, at the direction of, or in association with a
criminal street gang “to make it ‘clear that a criminal offense is
subject to increased punishment under the STEP Act only if the
crime is “gang related.” ’ [Citation.] Not every crime committed
by gang members is related to a gang. These crimes, though,
were gang related in two ways: they were committed in
association with the gang, and they were committed for the
benefit of the gang.” (Albillar, supra, 51 Cal.4th at p. 60.
Where three members of the same gang “actively assisted each
other” and, because of their common gang membership, “could
rely on each other’s cooperation in committing these crimes,”
there was sufficient evidence of both association and benefit —
in particular, that the gang members “would benefit from
committing [the crimes] together.” (Id. at p. 62.) On the latter
point concerning benefit, we also cited expert testimony that the
crimes bolstered the gang’s reputation as a violent, aggressive
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Opinion of the Court by Kruger, J.
gang. (Id. at pp. 62–63.) We explained that “[e]xpert opinion
that particular criminal conduct benefited a gang by enhancing
its reputation for viciousness can be sufficient to raise the
inference that the conduct was ‘committed for the benefit of . . .
a[] criminal street gang’ within the meaning of section
186.22(b)(1).” (Albillar, at p. 63.
As for the second requirement of the enhancement, we
said that when the 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 criminal
conduct by those gang members.” (Albillar, supra, 51 Cal.4th at
p. 68.
Albillar thus established that in cases where multiple
gang members were involved in the charged offense, the fact of
their joint involvement in a crime often provides sufficient
evidence of association and benefit, as well as circumstantial
evidence of an intent to promote the criminal activity of other
gang members, in connection with the very same criminal
offense. (Albillar, supra, 51 Cal.4th at pp. 60, 68.) But for
reasons Albillar makes clear, cases involving lone actors pose
different problems. Where there is no proof the defendant acted
in association with or at the direction of the gang, the
prosecution cannot rely on the joint nature of the offense to
establish either the requisite benefit to the gang or the specific
intent to promote the criminal activity of gang members. In a
lone-actor case, a different showing is necessary to satisfy these
requirements.
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Opinion of the Court by Kruger, J.
III.
A.
In considering the nature of that showing, we start with
the text. Section 186.22(b) sets out what is, in effect, a two-
pronged requirement: the felony must be committed (1) for the
benefit of, at the direction of, or in association with a criminal
street gang, and (2) with the specific intent to promote, further,
or assist in any criminal conduct by gang members.
(§ 186.22(b)(1), (4); Albillar, supra, 51 Cal.4th at pp. 51, 68.)7
We interpret this two-pronged requirement in light of the
constitutional backdrop against which it was enacted. Decades
before the STEP Act, the United States Supreme Court
explained in Scales v. United States (1961) 367 U.S. 203 (Scales
that the Constitution limits the state’s power to criminalize
membership in particular groups, including groups that engage
in illegal activities. As Scales put it: “In our jurisprudence guilt
is personal, and when the imposition of punishment on a status
or on conduct can only be justified by reference to the
7
The prosecution must also prove that the gang in question
is a “criminal street gang” within the meaning of the STEP Act.
At the time of the offenses at issue, the statute defined the term
“criminal street gang” to mean “ ‘an[y] ongoing organization,
association, or group of three or more persons, whether formal
or informal, having as one of its primary activities the
commission of one or more [enumerated criminal acts], having a
common name or common identifying sign or symbol, and whose
members individually or collectively engage in, or have engaged
in, a pattern of criminal gang activity.’ ” (People v. Lopez, supra,
73 Cal.App.5th at p. 344, italics omitted.) As noted previously,
Assembly Bill 333 has since narrowed the scope of this
requirement. (See fn. 6, ante.
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Opinion of the Court by Kruger, J.
relationship of that status or conduct to other concededly
criminal activity . . . , that relationship must be sufficiently
substantial to satisfy the concept of personal guilt in order to
withstand attack under the Due Process Clause of the Fifth
Amendment.” (Scales, at pp. 224–225.
The Legislature was aware of Scales when it was drafting
the STEP Act. (See People v. Castenada (2000) 23 Cal.4th 743,
749.) And with Scales in mind, the Legislature wrote section
186.22(b) in a manner designed to avoid imposing additional
punishment for a given felony based on “mere gang
membership.” (People v. Gardeley, supra, 14 Cal.4th at p. 623.
Rather, the Legislature imposed requirements intended to
“provide a nexus to gang activity sufficient to alleviate due
process concerns.” (Rodriguez, supra, 55 Cal.4th at p. 1139
(plur. opn.).
In cases involving joint activity, the required nexus is
generally shown by proof of criminal conduct undertaken in
concert with other gang members. (E.g., People v. Castaneda,
supra, 23 Cal.4th at pp. 750–751.) But in a case involving a lone
actor, operation of the statute turns, at bottom, on the nature of
the individual’s actions and reasons for committing the
underlying felony. Specifically, the statute requires proof that
the defendant committed the underlying felony (1) for the
benefit of the gang, and (2) with specific intent to promote,
further, or assist the criminal conduct of gang members. Insofar
as the statute “applies when a defendant has personally
committed a gang-related felony with the specific intent to aid
members of that gang,” it satisfies the “constitutional
requirement of personal guilt.” (Albillar, supra, 51 Cal.4th at
pp. 68, 67.
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Opinion of the Court by Kruger, J.
Two features of the intent requirement are particularly
relevant in lone-actor prosecutions. First, the specific intent to
aid the criminal activities of a gang’s members implies
knowledge of the nature of at least some of those activities.
(People v. Mendoza (1998) 18 Cal.4th 1114, 1131 [“One cannot
intend to help someone do something without knowing what
that person meant to do”]; see also People v. Beeman (1984) 35
Cal.3d 547, 558 [to establish “ ‘ “guilty knowledge and intent” ’ ”
with regard to another’s criminal conduct, the defendant must
know “the perpetrator’s criminal purpose” and “at least realize
he or she is aiding” in the conduct].) As Scales holds, due process
requires there be a significant connection between the
defendant’s “guilty knowledge and intent” and the criminal
conduct of the defendant’s associates — that is, “concrete” and
“practical” encouragement of “specifically illegal activities.”
(Scales, supra, 367 U.S. at p. 227.) Reading the statute against
this backdrop, we infer that to satisfy the second prong of the
statute, a defendant facing sentence enhancement allegations
for a gang-related felony under section 186.22(b) must at least
be aware of the type of criminal activity the gang members
pursue; without such awareness, the defendant cannot intend to
aid in such activity.
Second, the statute refers to the intent to promote
“criminal conduct by gang members” (§ 186.22(b)(1), (4), italics
added), the most natural reading of which means the promotion
of criminal conduct by more than one member of the gang (cf.
Rodriguez, supra, 55 Cal.4th at p. 1133 (plur. opn.) [giving
meaning to the plural use of “members” in section 186.22(a)]) —
which, in a lone-actor case, necessarily means the promotion of
conduct other than the commission of the underlying felony.
This is not to suggest that a defendant’s current offense is
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Opinion of the Court by Kruger, J.
always out of bounds; in Albillar we stated that the gang
enhancement statute does not require that “ ‘ “criminal conduct
by gang members” be distinct from the charged offense.’ ”
(Albillar, supra, 51 Cal.4th at p. 66.) There, however, we
addressed a context in which three gang members acted
together; the charged offenses thus already involved each
defendant assisting the criminal conduct of the other two gang
members. But where, as here, the defendant acts alone, the
criminal conduct of multiple gang members is not at issue.
Because the showing of intent must include the intent to
promote criminal activity by others, in a lone-actor case this
necessarily means an intent to promote criminal activity other
than the charged offense.8
B.
To establish the requisite intent in a lone-actor case, the
prosecution has often relied on expert opinion about the
potential for a gang member’s crime to benefit the gang by,
among other things, enhancing a gang’s reputation for violence
among rival gangs or in the community more generally. The
prosecution has typically asked the jury to infer that the
defendant committed the underlying felony in order to reap that
reputational benefit, and, by enhancing the gang’s reputation,
to facilitate members’ future crimes.
This approach is not without basis in case law: We cited
similar expert opinion in Albillar to support our conclusion that
the concerted actions of gang members in that case conferred a
benefit to the gang. (Albillar, supra, 51 Cal.4th at p. 63.
8
We disapprove People v. Hill, supra, 142 Cal.App.4th 770,
to the extent it is inconsistent with this understanding. (See id.
at p. 774.
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Opinion of the Court by Kruger, J.
Assembly Bill 333 has since placed clear limits on this approach
by requiring a cognizable “benefit” to be more than purely
reputational. (See fn. 6, ante.) But even setting these statutory
changes to one side, there have always been limits to what
expert testimony could show about a defendant’s reasons for
committing a crime. Without more, generalized expert opinion
that commission of a particular crime enhances the gang’s
power in the community by increasing its reputation for violence
falls short for at least two reasons.
First, this sort of expert opinion proves too much. If
generalized testimony about the reputational benefits of a
defendant’s violent crime were, standing alone, sufficient to
support an inference that the defendant committed the crime for
the benefit of the gang, with specific intent to promote, further,
or assist its members’ crimes, it would mean that essentially
every violent crime committed by a gang member could be
punished more severely under section 186.22(b) purely because
of the defendant’s gang membership. But “our STEP Act does
not criminalize mere gang membership,” nor does it impose
additional punishment on individuals merely because they
happened to belong to a gang when they committed a crime.
(People v. Gardeley, supra, 14 Cal.4th at p. 623.) As we have
explained above, any other understanding of the reach of the
STEP Act would raise significant constitutional concerns the
Legislature consciously sought to avoid. Thus, to “provide a
nexus to gang activity sufficient to alleviate due process
concerns” (Rodriguez, supra, 55 Cal.4th at p. 1139 (plur. opn.)),
the statute requires a closer connection between the defendant’s
crime and the conduct of the gang and its members than
generalized community reputation testimony can provide.
17
PEOPLE v. RENTERIA
Opinion of the Court by Kruger, J.
Second, describing a benefit to the gang is only part of the
equation; the prosecution must also establish that the defendant
committed the underlying felony with the specific intent to
promote, further, or assist criminal conduct by other gang
members — a requirement we have described as knowledge of
at least some of the criminal activities of the gang and its
members and intent to further those activities. Without more,
evidence that committing a violent crime can enhance the gang’s
reputation for viciousness in the community does not support an
inference that the defendant committed a particular violent
crime for the benefit of the gang and with the intent to facilitate
known criminal activity by other gang members.
None of this is to suggest that prosecutors may not rely on
expert opinion to connect the defendant’s crime with the conduct
of the gang and its members; to the contrary, we have previously
held that “ ‘[e]xpert opinion that particular criminal conduct
benefited a gang’ is not only permissible but can be sufficient to
support the Penal Code section 186.22, subdivision (b)(1), gang
enhancement.” (People v. Vang (2011) 52 Cal.4th 1038, 1048.
But important limitations apply to the use of such testimony.
Expert opinion, typically guided by hypothetical questions,
“ ‘must be rooted in facts shown by the evidence.’ ” (Id. at
p. 1045.) They “ ‘may not be based “on assumptions of fact
without evidentiary support [citation], or on speculative or
conjectural factors.” ’ ” (Id. at p. 1046.
The appellate case law offers guidance about how to
ensure that expert reputation testimony is linked by specific
evidence, rather than speculation or conjecture, to a defendant’s
gang-related goals in committing a particular crime. People v.
Ochoa (2009) 179 Cal.App.4th 650 is instructive. There, in a
case involving a carjacking, the expert testified that carjacking
18
PEOPLE v. RENTERIA
Opinion of the Court by Kruger, J.
was a “ ‘signature’ ” crime of gangs generally, and its
commission in that case would elevate the reputation of the
defendant’s gang. (Id. at p. 655; id. at p. 656.) The Court of
Appeal concluded the expert opinion was based on speculation,
however, finding no evidence the defendant engaged in a
distinctive carjacking style that could be attributed to his gang;
no evidence the defendant made his gang affiliation known or
later took credit for the crime; no evidence the victim was a gang
member or rival; and no evidence the defendant’s purpose
involved retaliation for past gang activity. (Id. at pp. 662–663.
Across cases, appellate courts have relied on similar factors —
whether the defendant’s gang membership was apparent to
observers, whether the victim was a gang member or rival of the
defendant’s gang, and whether retaliation for prior gang activity
or disputes prompted the defendant’s crime — to describe the
limits of reputation evidence and ensure that it is grounded in
specific facts that show the defendant acted on behalf of a gang
rather than for personal reasons. (E.g., People v. Soriano, supra,
65 Cal.App.5th at p. 289; People v. Perez (2017) 18 Cal.App.5th
598, 609; People v. Ramirez (2016) 244 Cal.App.4th 800, 819;
People v. Rios, supra, 222 Cal.App.4th at p. 573.)9
9
Some courts have noted that a defendant’s presence in
gang territory may be relevant to determining whether a crime
was gang-related. (E.g., In re Frank S. (2006) 141 Cal.App.4th
1192, 1199; People v. Ochoa, supra, 179 Cal.App.4th at p. 662;
People v. Rios, supra, 222 Cal.App.4th at p. 574; People v. Perez,
supra, 18 Cal.App.5th at p. 609.) Such evidence should be
approached with caution, however; it may not be “particularly
probative” when, for example, the territory in question is also
where the defendant lives. (People v. Soriano, supra, 65
Cal.App.5th at p. 289.
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PEOPLE v. RENTERIA
Opinion of the Court by Kruger, J.
Some appellate courts have discerned in Albillar a broader
authorization to rely on generalized reputation testimony. This
overreads our opinion in that case; Albillar is best understood
in light of its particular factual context.
We did state in Albillar that “[e]xpert opinion that
particular criminal conduct benefited a gang by enhancing its
reputation for viciousness can be sufficient to raise the inference
that the conduct was ‘committed for the benefit of . . . a[]
criminal street gang.’ ” (Albillar, supra, 51 Cal.4th at p. 63.
But the showing in that case included evidence that three gang
members together raped a young woman in an apartment
“ ‘saturated’ ” with their gang paraphernalia (id. at p. 62) and
then attempted to leverage their violence and gang membership
when threatening the victim to stop her from reporting their
crimes (id. at p. 53). Unlike expert testimony about the
reputational benefits of crime in general, the evidence in
Albillar demonstrated a connection between the gang’s
reputation for viciousness and the specific ways the gang
benefited from that reputation, namely, the intimidation of
specific, identifiable witnesses and the possibility that gang
members might avoid prosecution or conviction for their crimes.
And Albillar also highlighted the benefit the gang members
derived from acting together (id. at p. 62), indicating that
evidence supporting the associational element of the statute
provided further circumstantial evidence of a benefit to the
gang. Albillar therefore did not present a situation in which
reputation evidence alone satisfied the gang enhancement
statute in a case involving a felony committed by a lone actor, or
where the jury was left to speculate about the target of the
intimidation by the gang members or what criminal activity the
gang members intended to facilitate.
20
PEOPLE v. RENTERIA
Opinion of the Court by Kruger, J.
Nor do our other cases offer such authorization. In
Gardeley, we found evidence supporting the section 186.22(b
enhancement sufficient when expert testimony provided a link
between the crime committed and intimidation that was
relevant to specific gang activities. There, gang members
assaulted a stranger who entered an area where they were
selling cocaine; expert testimony established that the gang’s
primary purpose was to sell narcotics and that such violent
assaults intimidated residents in the gang’s territory, allowing
its members to maintain their drug-dealing stronghold. (People
v. Gardeley, supra, 14 Cal.4th at pp. 612–613, 619.
And in People v. Rivera (2019) 7 Cal.5th 306, we found
evidence sufficient to establish “that Rivera specifically
intended the murder [of a police officer] to benefit and promote
the gang” when it showed that Rivera was an active gang
member, that he participated in and pleaded guilty to offenses
related to the gang’s drug trade, that the officer killed had been
leading an investigation of the gang’s drug trade, and that the
officer had questioned Rivera and searched his home regarding
the investigation. (Id. at p. 332; see id. at pp. 331–332.) These
facts not only connected Rivera’s actions to the criminal
activities of his gang and its members but also suggested
“substantial participation” in those activities that would
support an inference of knowledge and intent to facilitate them
through the killing of the investigating officer. (People v.
Johnson (2016) 62 Cal.4th 600, 630.
In the end, any inference that might otherwise be drawn
from testimony that “particular criminal conduct benefited a
gang by enhancing its reputation for viciousness” (Albillar,
supra, 51 Cal.4th at p. 63) must be cabined so that section
186.22(b) prosecutions avoid punishing mere gang membership,
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PEOPLE v. RENTERIA
Opinion of the Court by Kruger, J.
as opposed to gang-related conduct. In a case involving a gang
member who has acted alone in the commission of a felony, there
must be evidence connecting testimony about any general
reputational advantage that might accrue to the gang because
of its members’ crimes to the defendant’s commission of a crime
on a particular occasion for the benefit of the gang, and with the
specific intent to promote criminal activities by the gang’s
members.
IV.
With all this in mind, we turn to the specifics of Renteria’s
challenge to the imposition of gang penalties for shooting at two
inhabited dwellings. “In considering a challenge to the
sufficiency of the evidence to support an enhancement, we
review the entire record in the light most favorable to the
judgment to determine whether it contains substantial
evidence — that is, evidence that is reasonable, credible, and of
solid value — from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citation.] We
presume every fact in support of the judgment the trier of fact
could have reasonably deduced from the evidence. [Citation.] If
the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the
circumstances might also reasonably be reconciled with a
contrary finding. [Citation.] ‘A reviewing court neither
reweighs evidence nor reevaluates a witness’s credibility.’ ”
(Albillar, supra, 51 Cal.4th at pp. 59–60.
As this guidance indicates, and as we reiterated recently,
sufficiency determinations necessarily take account of the
“standard of proof that applied before the trial court”
(Conservatorship of O.B. (2020) 9 Cal.5th 989, 1008); that is why
22
PEOPLE v. RENTERIA
Opinion of the Court by Kruger, J.
in criminal cases we must ensure the record demonstrates
substantial evidence to establish guilt beyond a reasonable
doubt (ibid.; see also People v. Soriano, supra, 65 Cal.App.5th at
p. 281 [reiterating the standard of proof in reviewing sufficiency
of gang enhancement evidence]).
This was a lone-actor case. True, as the Court of Appeal
stated, “[i]t is not altogether certain defendant acted alone.”
(People v. Renteria, supra, F076973.) The evidence did indicate
that someone was with Renteria when he shot at Jack D.’s
house. But it did not establish who that person was or whether
he or she was a gang member. The record therefore lacks
substantial evidence that Renteria acted with another gang
member in committing these offenses. So we proceed, for
purposes of analyzing the sufficiency of the evidence, on the
premise that Renteria acted alone.10
In finding sufficient evidence to support the gang
penalties, the Court of Appeal concluded that Renteria’s actions
intimidated the community in a way that both benefited his
gang and demonstrated his intent to promote his own future
criminal activity and that of other gang members. The court
stated that Renteria’s shootings intimidated rival gang
members and neighborhood residents, increased his gang’s
control of contested territory, and therefore facilitated future
crimes that he and his fellow gang members would commit.
(People v. Renteria, supra, F076973.) The Attorney General
10
At oral argument, the Attorney General suggested for the
first time that this case might not be a lone-actor case if Renteria
were acting according to an official gang “policy.” In those
circumstances, the argument goes, the actions would be “at the
direction of” the gang. We do not consider this belatedly raised
possibility and so express no views on the merit of the argument.
23
PEOPLE v. RENTERIA
Opinion of the Court by Kruger, J.
similarly argues that intimidating witnesses and rivals
established Renteria’s intent to facilitate future criminal
conduct by other gang members. And at trial, the gang expert
testified that the Sureño gang benefited from violence by its
members because the violence intimidated witnesses and
allowed gang members to continue their “day-to-day gang
activity.”
The first and most fundamental difficulty with
prosecution’s case is that no substantial evidence shows that
Renteria intended his actions to be attributed to his gang. The
Attorney General points to evidence that, at some point on the
night of the shootings, Renteria associated with a group that
shouted out “Sur trece,” a gang slogan. But the description of
events did not provide substantial evidence that this happened
especially close in time to the shootings, and the record does not
support the inference that, by walking along with the group
earlier in the night, Renteria intended the later shootings to be
attributed to the gang. Although the parties dispute the timing
of events, the evidence shows that the group dispersed and,
according to Anthony A., it was “a little while” later when
Renteria returned and shot at the houses. When questioned by
Anthony, Renteria minimized and distanced himself from the
shouting, suggesting those involved were drunk and he was just
helping them home. There was no evidence that Renteria
identified himself or his gang during the shooting or took credit
for it on behalf of his gang afterwards.
Nor does the record support a conclusion that Renteria
could have reasonably anticipated the community would
perceive a gang connection. No witnesses testified that they
believed the shootings were related to a Sureño gang or gang
rivalry, or that they feared Sureño gang activity. When the
24
PEOPLE v. RENTERIA
Opinion of the Court by Kruger, J.
prosecutor asked one neighbor if he worried about testifying or
feared for his family because of his role in the case, the witness
denied such concerns; another neighbor testified that she was
frightened by the shooting but did not connect it to gang activity,
much less to Renteria’s gang. Jack D. did not attribute the
shooting of his house to gang activity either; he testified that he
had not even been aware of it. And Anthony testified that he
understood Renteria’s companions to be shouting “slang gang
words” earlier in the evening, but gave no indication he thought
Renteria himself was a Sureño gang member or that he believed
the shootings were related to a Sureño cause.
Equally important, no substantial evidence in the record
supports the Attorney General’s claim that Renteria intended
the shooting to contribute to his gang’s rivalry with
Northerners. The Attorney General argues the evidence
reasonably allowed the jury to infer that Renteria shot at
Jack D.’s house for the benefit of his gang because he was
retaliating for being “ ‘hit up’ ” earlier the same evening. The
record demonstrates that Renteria had been challenged by
people he assumed were Northerners; he believed they had a
shotgun and ran from them. Police later found a shotgun in
Jack’s closed garage that would not have been visible to
Renteria. Officer Adney also testified that in the past, he had
seen Robert P., who was “associated” with Jack’s home (but did
not live with Jack), in the presence of Norteño gang members.
The Court of Appeal noted that “there was evidence Jack D.’s
house had at least some link to Norteños, even if it was not a
hotbed of rival gang activity.” (People v. Renteria, supra,
F076973.) But the shotgun and a vague reference to Robert does
not amount to substantial evidence from which the jury could
conclude beyond a reasonable doubt that shooting at Jack’s
25
PEOPLE v. RENTERIA
Opinion of the Court by Kruger, J.
house was a retaliation carried out to benefit Renteria’s gang, or
that it would have been so understood by anyone in a position to
know about the shooting. To the extent Officer Adney testified
that Renteria may have engaged in the shooting to maintain his
own respect within the gang, such evidence fails to explain how
enhancing his personal reputation within the gang would
facilitate the criminal activities of the gang and its members, as
section 186.22(b) requires.11
Finally, we see no other evidence from which the jury
could infer that Renteria knew of and thus might have intended
to promote the criminal activities of his gang’s members.
Renteria admitted being a Sureño when he was in middle school
and a few years later police detained him at an abandoned house
that had been spray painted with gang-related graffiti. Renteria
again admitted being a Sureño when he was arrested for the
current charges, but the prosecutor offered no evidence to show
the degree of Renteria’s involvement with the gang, to otherwise
suggest his familiarity with the criminal activities of the gang’s
members, or to identify the criminal conduct Renteria’s actions
might have facilitated. (Cf. Albillar, supra, 51 Cal.4th at p. 62
[evidence that defendants had large gang tattoos on their torso,
neck, and face and lived in an apartment “ ‘saturated’ with gang
paraphernalia” showed their relationship with the gang was
11
The Attorney General concedes that Renteria’s motivation
for shooting at the second house was unrelated to retaliation but
argues that it contributed to the violent reputation of his gang.
As we have discussed, however, there was no evidence the
victims or other community or gang members perceived a
connection between Renteria’s actions and his gang, such that
Renteria’s gang might have stood to benefit in this way. Nor
was there evidence that Renteria intended to facilitate known
criminal activity by other gang members.
26
PEOPLE v. RENTERIA
Opinion of the Court by Kruger, J.
more than “ ‘superficial’ ”]; People v. Rivera, supra, 7 Cal.5th at
p. 331 [charged crimes involved defense of drug dealing territory
and the defendant had previously pleaded guilty to offenses
related to his gang’s drug trade]; People v. Sanchez (2016) 63
Cal.4th 665, 699 [evidence of the defendant’s prior law
enforcement contacts “bolstered the prosecution’s theory that he
acted with intent to benefit his gang”].
In sum, considering the record as a whole, we conclude
there was not sufficient evidence to support either prong of the
gang enhancement statute, with respect to either shooting. The
evidence at trial demonstrated that Renteria was a gang
member at the time of the shootings. But the evidence did not
support the inference that Renteria committed the shootings for
the gang’s benefit, with the specific intent to promote the
criminal activities of gang members, as opposed to acting for his
own, personal reasons. Thus, while Renteria is undisputedly
subject to punishment for the unlawful shootings, he is not
subject to the additional punishment prescribed for felonies that
have been shown to be gang-related under section 186.22(b).
DISPOSITION
We reverse the judgment of the Court of Appeal insofar as
it upheld the imposition of the section 186.22(b)(4) penalties,
with directions to remand the case to the trial court for
resentencing in accordance with this opinion.
27
PEOPLE v. RENTERIA
Opinion of the Court by Kruger, J.
KRUGER, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
GROBAN, J.
JENKINS, J.
GUERRERO, J.
28
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Renteria
Procedural Posture (see XX below
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP opn. filed 1/5/21 – 5th Dist.
Rehearing Granted
Opinion No. S266854
Date Filed: August 25, 2022
Court: Superior
County: Tulare
Judge: Kathryn T. Montejano
Counsel:
James Bisnow, under appointment by the Supreme Court, for
Defendant and Appellant.
Mary K. McComb, State Public Defender, Hassan Gorguinpour and
Alyssa Mellott, Deputy State Public Defenders, for the Office of the
State Public Defender as Amicus Curiae on behalf of Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters
and Gerald A. Engler, Chief Assistant Attorneys General, Michael P.
Farrell, Assistant Attorney General, Louis M. Vasquez, Darren K.
Indermill, Rachelle A. Newcomb, Cavan M. Cox II and Lewis A.
Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
James Bisnow
117 East Colorado Boulevard, Suite 600
Pasadena, CA 91105
(626) 229-9665
Lewis A. Martinez
Deputy Attorney General
2550 Mariposa Mall, Room 5090
Fresno, CA 93721
(559) 705-2308
Alyssa Mellott
Deputy State Public Defender
1111 Broadway, Suite 1000
Oakland, CA 94602
(510) 267-3300
Opinion Information
| Date: | Docket Number: |
| Thu, 08/25/2022 | S266854 |
