Ochoa

A jury convicted defendant Guillermo Ochoa of carjacking (count 1—Pen. Code, § 215, subd. (a)), [1] attempted robbery (count 2—§§ 664, 211), felon in possession of a firearm (count 3—§ 12021, subd. (a)(1)), and active participation in a criminal street gang (count 4—§ 186.22, subd. (a)). The jury hung on the section 186.22, subdivision (b), gang enhancement allegations attached to counts 1 through 3. After a second trial on the gang enhancements, another jury found the allegations attached to counts 1 and 3 true, but found the enhancement attached to count 2 not true. On count 1, the court sentenced defendant to life with a minimum parole eligibility date of 15 years. [2] On count 3, the court sentenced defendant to a five-year concurrent term consisting of the midterm of two years on the substantive offense with a consecutive three-year term on the attached gang enhancement. The four section 667.5, subdivision (b), prior prison term enhancements alleged in the information were never tried nor was any finding on them ever rendered; nevertheless, the court imposed concurrent, one-year sentences on each of them.

On appeal defendant makes three contentions: (1) that…

A jury convicted defendant Guillermo Ochoa of carjacking (count 1—Pen. Code, § 215, subd. (a)), 1 attempted robbery (count 2—§§ 664, 211), felon in possession of a firearm (count 3—§ 12021, subd. (a)(1)), and active participation in a criminal street gang (count 4—§ 186.22, subd. (a)). The jury hung on the section 186.22, subdivision (b), gang enhancement allegations attached to counts 1 through 3. After a second trial on the gang enhancements, another jury found the allegations attached to counts 1 and 3 true, but found the enhancement attached to count 2 not true. On count 1, the court sentenced defendant to life with a minimum parole eligibility date of 15 years. 2 On count 3, the court sentenced defendant to a five-year concurrent term consisting of the midterm of two years on the substantive offense with a consecutive three-year term on the attached gang enhancement. The four section 667.5, subdivision (b), prior prison term enhancements alleged in the information were never tried nor was any finding on them ever rendered; nevertheless, the court imposed concurrent, one-year sentences on each of them.

On appeal defendant makes three contentions: (1) that substantial…

Dissenting.—I respectfully dissent.

I respectfully disagree with the conclusion reached by the majority that there is insufficient evidence to support the jury’s findings that the carjacking and possession of a firearm by an ex-felon were committed to benefit defendant’s gang. *

*666 I add the following evidence, adduced at trial, to my discussion of this issue: Deputy Anthony Johnson testified that most gang members are afraid of the gang enhancements defendant was facing and when such enhancements are alleged against them, they “backtrack” and try to claim that they were not active in the gang. Deputy Johnson specifically related this fear to defendant by testifying that defendant, in a letter written to a fellow gang member while the former was in custody, congratulated the latter on “beating” the gang enhancement(s) brought against the latter. Sergeant Frank Assumma continued with this theme, testifying, as the majority pointed out (maj. opn., ante, at p. 655) that gang members do not always announce their affiliation, either by word or appearance, when committing crimes and they do this in order to avoid detection and prosecution. In fact, he added it was not often seen,…