Filed 5/2/17 P. v. Alvarado-PenalozaCA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
OSCAR ALVARADO-PENALOZA,
Defendant and Appellant.
G052485
(Super. Ct. No. 14CF3030)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Thomas
M. Goethals, Judge. Affirmed in part and reversed in part.
Erica Gambale, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Joy
Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
2
Appellant Oscar Alvarado-Penaloza was arrested in his neighborhood and
found to be in possession of a loaded, unregistered firearm. At trial, there was no direct
evidence as to why appellant had the gun or whether he was planning to use it. However,
a gang expert opined appellant possessed the gun for the benefit of a criminal street gang,
and the jury so found. The sole issue before us is whether that finding is supported by
substantial evidence. Although it’s a close call, we believe the answer to that question is
no. We therefore reverse the jury’s true finding on the gang enhancement allegations.
FACTS
At nine o’clock one Tuesday evening, Probation Officers Lawrence Ibarra
and Christopher Fox were driving in the 1800 block of South Cedar Street in Santa Ana.
There is no evidence the officers had any specific information about any crimes occurring
or about to occur at that time, but they were in a high-crime area where many
probationers and gang members live. It appears the officers were there to see what was
going on and to check in on any probationers they might encounter.
As they were driving in an alley off Cedar Street, Ibarra stopped their car,
and Fox alighted on foot. Ibarra then continued driving, while Fox walked along Cedar.
Moments later, Fox saw appellant leave his home on Cedar and walk across the street.
Appellant was by himself, and there were no other people in the area. He continued
walking a short distance before turning onto a walkway between two apartments. The
walkway led appellant to a courtyard near Ibarra. Upon seeing Ibarra, appellant turned
around and fled back toward Cedar. Fox saw appellant running and noticed he had a
shiny, chrome object in his waistband.
1 He chased appellant and saw him toss the object
in the bushes. He then cornered appellant in a courtyard and arrested him without
incident. A search of the bushes turned up a .38 caliber handgun that was loaded and
unregistered.

1 Appellant was wearing basketball shorts. According to Fox, he had trouble keeping up his shorts
once he started running.
3
Appellant was charged with possessing a firearm while a felon and carrying
a loaded, unregistered firearm in public. (Pen. Code, §§ 29800, subd. (a)(1), 25850,
subds. (a), (c)(6).) It was also alleged appellant committed those offenses for the benefit
of a criminal street gang. (Pen. Code, § 186.22, subd. (b).) At trial, appellant conceded
he was guilty of the substantive offenses. The only contested issue was the truth of the
gang allegations.
As to that issue, the prosecution called David Prewitt, who is an officer in
the Santa Ana Police Department’s gang suppression unit.2 Prewitt testified the area
around Cedar Street where appellant lives is one of the most dangerous and crime-ridden
spots in Santa Ana. Drug activity and violence are rampant, and several gangs are firmly
entrenched in the area. Most notably, the area along Cedar Street where appellant lives is
controlled by the Delhi gang, whose primary activities are gun possession and narcotics
sales. And the area just east of there – about one or two minutes’ walk away – is
controlled by Delhi’s rival, the Locotes. Prewitt said that when appellant left his house
on Cedar on the night in question, he walked in the general direction of the Locotes’
territory.
Prewitt testified the chief aim of gangs like Delhi and the Locotes is to be
respected. They believe they achieve respect, Prewitt said, by committing crimes and
instilling fear in others. The more violent the crime, the more respect it will engender.
Consequently, guns are like “gold to a gang” because of their lethal capability. They can
be used for both offensive and defensive purposes, and they are often passed around from
one gang member to another. Prewitt testified there is no such thing as private gun
ownership in the context of a gang. As he put it, “Gang members are not allowed to
personally own firearms. The firearms belong to the gang[,]” which explains why a
gang’s firearms are sometimes referred to as “gang guns.” Prewitt also stated that newer

2 This case marked the fourth time Prewitt had ever testified as a gang expert in court.
4
gang members are generally not permitted to handle firearms. They must earn the trust of
their gang by committing smaller crimes before they are allowed access to a gun.
Speaking to appellant’s gang status, Prewitt testified appellant has been
contacted by the police for suspected gang involvement on numerous occasions. The first
documented episode was in March 2012, two and a half years before the instant case
arose. At that time, appellant was 15 years old. He identified himself as being a member
of FTL, which was a predecessor to the Locotes gang.3 Later in 2012, appellant told the
police during a street contact that he used to “kick it” with FTL and the Locotes, but he
stopped doing that, and now he “kicks it with Delhi.” A year after that, in December
2013, appellant was convicted of a felony offense and admitted being an active
participant in Delhi.
Prewitt was asked by the prosecutor how gangs react when one of their
members quits to join a rival outfit. Prewitt said that if the gang feels insulted by the
member’s departure, it could seek to “pay that person back for doing what [it] feel[s] is
wrong.” However, Prewitt admitted he had no information appellant was ever targeted
by the Locotes in retaliation for leaving that gang and joining Delhi. In fact, Prewitt did
not have any information appellant was having any problems with anyone, gang member
or not.
Prewitt was also asked how gangs benefit when their members carry around
loaded firearms. Prewitt said there could be multiple benefits. First, the gang member
could be providing security for himself and others so, if a rival came into their turf, they
would be protected. Second, the gang member might want to carry out an assault on a
rival gang member, which would earn him points with his gang. Prewitt also said
members of the community are less likely to report gang crimes to the police if they see
gang members with firearms in their neighborhood.

3 Prewitt testified “there is no longer an FTL gang. It is now Locotes. They just changed the name.
Same turf, same members, just different name.”
5
After offering this generalized testimony, Prewitt was asked some
hypothetical questions based on the facts of this case. He surmised that if a gang member
were carrying a firearm under the circumstances presented here, that person would be
benefiting his gang and have the specific intent to do so.
On cross-examination, Prewitt admitted there was no evidence as to where
appellant got his gun or that anyone in Delhi knew he had it. Prewitt also admitted there
was no evidence appellant was either planning to meet up with anyone or confront
anyone when he left his house on the night in question. Nor was there any evidence
appellant planned to use his gun that night or that anyone in Delhi had asked him to do
so. Prewitt conceded, as well, that he was not aware of any specific benefit that inured to
appellant or his gang by virtue of his conduct that evening. The record does not suggest
anyone other than appellant and the probation officer saw the gun before appellant’s
arrest.
In closing argument, the prosecutor emphasized appellant’s gang status in
urging the jury to find the gang allegations true. He posited, “Delhi is a violent gang,
they carry loaded guns, and [appellant] is an active participant of Delhi. It is not that
complicated. It is not confusing when you really just start to look at that.” The
prosecutor also implored the jury not to get hung up on the fact appellant never actually
used the gun he had with him. In this regard, the prosecutor stated that “once you walk
out the door with that loaded gun readily accessible onto Cedar Street, that’s when it
becomes of a benefit to the gang. Because a rival could show up. Because someone
from Delhi could need the gun. That’s the point of this . . . enhancement. It is of a
benefit to the gang.”
In the end, the jury convicted appellant of the two substantive gun offenses
and found the gang allegations true. The trial court sentenced appellant to a year in jail
and three years’ probation for his crimes.
6
DISCUSSION
Appellant contends there is insufficient evidence to support the jury’s true
finding on the gang allegations. We agree.
“We review claims of insufficient evidence by examining the entire record
in the light most favorable to the judgment below. [Citation.] We review to determine if
substantial evidence exists for a reasonable trier of fact to find the [allegations] true
beyond a reasonable doubt. [Citation.]” (In re Frank S. (2006) 141 Cal.App.4th 1192,
1196 (Frank S.).) By definition, “substantial evidence” requires actual evidence; it
cannot be arrived at by mere speculation, conjecture, guesswork or surmise. (People v.
Morris (1988) 46 Cal.3d 1, 19–21, disapproved on other grounds in In re Sassounian
(1995) 9 Cal.4th 535, 543, fn. 5.)
Penal Code section 186.22, subdivision (b), authorizes a sentence
enhancement when the defendant “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[.]” As our
Supreme Court has stated, this enhancement applies only when the underlying crime is
“gang related” (People v. Gardeley (1996) 14 Cal.4th 605, 622, overruled on other
grounds in People v. Sanchez (2016) 63 Cal.4th 665), and “[n]ot every crime committed
by gang members is related to a gang” (People v. Albillar (2010) 51 Cal.4th 47, 60).
Rather, the enhancement only attaches when the underlying crime benefits the gang and
the crime was committed with the specific intent to promote, further or assist criminal
activity by the gang. (Frank S., supra, 141 Cal.App.4th at p. 1196.)
In Frank S., the defendant was found in possession of a knife after the
police stopped him for a bicycle infraction. The defendant admitted he had the knife to
protect himself from rival gang members, and a gang expert testified gangs benefit when
their members carry weapons because it provides them with a means of self-defense.
7
(Frank S., supra, 141 Cal.App.4th at pp. 1195–1196.) However, the Frank S. court ruled
that was not enough to support a finding the defendant harbored the requisite intent to
promote, further or assist criminal activity by his gang. In so ruling, the court
emphasized, “The prosecution did not present any evidence that the minor was in gang
territory, had gang members with him, or had any reason to expect to use the knife in a
gang-related offense.” (Id. at p. 1199.)
Likewise here, appellant was alone when he was stopped, and there was no
evidence he was planning to use his gun to commit a crime on his gang’s behalf.
Appellant was in Delhi territory at the time of his arrest, but that’s where he lived. In
fact, he was only about half a block away from his home when he came in contact with
the probation officers. Under these circumstances, it is not particularly probative of
appellant’s intent that he happened to be in gang territory when the present offenses
occurred.
Respondent makes much of the fact that not only was appellant in Delhi
territory, he was walking toward the territory of a rival gang, the Locotes. However, the
entire area around appellant’s home is surrounded by rival gang turf. The Locotes are
probably the closest to appellant’s house, but the Alley Boys, the Lopers, Little Minnie
and Eastside occupy territory that is nearby, as well. The area is so gang ridden that it
would be virtually impossible for appellant to leave his house in any direction without
being minutes away from the territory of some rival gang. Thus, we are reluctant to read
too much into the direction appellant was walking when he left his home.
Of course, the situation would be much different if there were evidence
appellant was walking toward the Locotes territory with a gang purpose in mind. For
example, if a Delhi member had been a recent victim of Locotes violence, it might be
reasonable to infer appellant was heading toward Locotes territory for a retaliatory
purpose. But, other than general animosity, there was no evidence of any recent
hostilities between Delhi and the Locotes. Nor was there any particular evidence
8
appellant was in danger of being attacked. Granted, the Locotes may not have liked it
when appellant left their gang and joined Delhi, but that event happened about two years
before the instant case arose. There is nothing in the record indicating appellant was ever
actually targeted in retaliation for leaving the Locotes or that anyone in that gang – or
anyone else for that matter – was out to get him. The mere fact appellant could have used
his gun for offensive or defensive purposes is insufficient to prove he intended to help his
gang by carrying it with him. (See People v. Ramon (2009) 175 Cal.App.4th 843, 851 [in
finding the defendant’s act of driving around in gang territory with a gun insufficient to
support a gang allegation, the court reasoned, “While it is possible (defendant was) acting
for the benefit of the gang, a mere possibility is nothing more than speculation.
Speculation is not substantial evidence.”].)
Respondent mentions two other factors as supporting the jury’s finding on
the gang allegations. First, appellant’s gun was visible to Probation Officer Fox when he
had it in his waistband. Respondent argues this shows appellant was trying to send a
message to people in his neighborhood not to mess with members of his gang. However,
there is no evidence appellant’s gun was visible when he left his home and started
walking along Cedar Street. Rather, the gun only became visible to Fox once appellant
started running away from Officer Ibarra. Thus, it does not appear he was trying to
intimidate anyone with the weapon.
Respondent also contends appellant’s gun must have been a “gang gun”
because, according to Prewitt, gang members are not permitted to own guns privately.
Assuming that is true,4 that would not establish appellant intended to benefit his gang by
having the gun with him on the evening in question. Indeed, absent any particular

4 In closing argument, the prosecutor conceded it would be possible for a gang member to have a
firearm for nongang-related purposes, such as hunting or target practice. (See also People v. Sifuentes (2011) 195
Cal.App.4th 1410, 1417 [while a gang expert testified that “gang guns” are passed freely among gang members to
commit crimes, that did not mean that “any gun possessed by a gang member automatically constitutes a gang
gun”].)
9
evidence showing appellant had the gun for a gang-related purpose, the technical aspects
of ownership do not really tell us much about appellant’s state of mind. Appellant was
shown to be a convicted felon and a member of a gang that is fond of guns, but “crimes
may not be found to be gang related solely upon a perpetrator’s criminal history and gang
affiliations.” (Frank S., supra, 141 Cal.App.4th at p. 1195.) While it is certainly possible
appellant possessed the gun for the benefit of his gang, we do not believe there is
substantial evidence to support the jury’s finding in that regard.
The prosecutor’s closing argument neatly summed up the People’s case:
our appellant left the house with a gun in his pocket, he violated Penal Code section
186.22, subdivision (b). We don’t believe it is that simple, and in the absence of anything
more, we must reverse.
DISPOSITION
The jury’s true finding on the gang enhancement allegations is reversed. In
all other respects, the judgment is affirmed.
BEDSWORTH, ACTING P. J.
WE CONCUR:
MOORE, J.
IKOLA, J.