People v. Prunty

• Decision Date: 27 August 2015
• Docket Number: No. S210234.,S210234.
• Citation: 355 P.3d 480,62 Cal.4th 59,192 Cal.Rptr.3d 309
• Parties: The PEOPLE, Plaintiff and Respondent, v. Zackery PRUNTY, Defendant and Appellant.
• Court: California Supreme Court

62 Cal.4th 59

355 P.3d 480

192 Cal.Rptr.3d 309

The PEOPLE, Plaintiff and Respondent,

v.Zackery PRUNTY, Defendant and Appellant.

No. S210234.

Supreme Court of California

Aug. 27, 2015.

Susan K. Shaler, Solana Beach, under appointment by the Supreme Court, for Defendant and Appellant.

Lisa M. Romo, for Pacific Juvenile Defender Center as Amicus Curiae on behalf of Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Wanda Hill Rouzan and Kevin L. Quade, Deputy Attorneys General, for Plaintiff and Respondent.

CUÉLLAR, J.

Penal Code section 186.22, also known as the Street Terrorism Enforcement and Prevention Act (the STEP Act or Act), was enacted in 1988 to combat a dramatic increase in gang-related crimes and violence. The Act imposes various punishments on individuals who commit gang-related crimes—including a sentencing enhancement on those who commit felonies "for the benefit of, at the direction of, or in association with any criminal street gang. " ( Pen.Code § 186.22, subd. (b) ( section 186.22(b) ), italics added.)¹ A criminal street gang, in turn, is defined by the Act as any "ongoing organization, association, or group of three or more persons" that shares a common name or common identifying symbol; that has as one of its "primary activities" the commission of certain enumerated offenses; and "whose members individually or collectively" have committed or attempted to commit certain predicate offenses. ( § 186.22, subd. (f) ( section 186.22(f) ).) To prove that a criminal street gang exists in accordance with these statutory provisions, the prosecution must demonstrate that the gang satisfies the separate elements of the STEP Act's definition and that the defendant sought to benefit that particular gang when committing the underlying felony.

This case asks us to decide what type of showing the prosecution must make when its theory of why a criminal street gang exists turns on the conduct of one or more gang subsets. In this case, the prosecution's theory was that defendant Zackery Prunty committed an assault to benefit the Sacramento-area Norteño street gang. The evidence showed that Prunty identified as a Norteño; that he claimed membership in a particular Norteño subset, the Detroit Boulevard Norteños; and that Prunty uttered gang slurs and invoked "Norte" when shooting a perceived rival gang member at a Sacramento shopping center. To show that Prunty's crime qualified for a sentence enhancement under the STEP Act, the prosecution's gang expert testified about the Sacramento-area Norteño gang's general existence and origins, its use of shared signs, symbols, colors, and names, its primary activities, and the predicate activities of two local neighborhood subsets. The expert did not, however, offer any specific testimony contending that these subsets' activities connected them to one another or to the Sacramento Norteño gang in general. We must determine whether this is enough to satisfy the STEP Act's "criminal street gang" definition.

We conclude that the STEP Act requires the prosecution to introduce evidence showing an associational or organizational connection that unites members of a putative criminal street gang. The prosecution has significant discretion in how it proves this associational or organizational connection to exist; we offer some illustrative examples below of strategies prosecutors may pursue. Yet when the prosecution seeks to prove the street gang enhancement by showing a defendant committed a felony to benefit a given gang, but establishes the commission of the required predicate offenses with evidence of crimes committed by members of the gang's alleged subsets, it must prove a connection between the gang and the subsets. In this case, the prosecution did not introduce sufficient evidence showing a connection among the subsets it alleged comprised a criminal street gang, so Prunty was not eligible for a sentence enhancement under the STEP Act. We must therefore reverse the Court of Appeal's contrary judgment.

I. BACKGROUND

On the evening of November 26, 2010, 21–year–old Gustavo Manzo went to a fast-food restaurant in a Sacramento shopping plaza, accompanied by his girlfriend and her two younger brothers. Manzo was wearing a Los Angeles Dodgers baseball cap, which is attire typically associated with Sureño street gangs. As Manzo and his companions approached the restaurant, defendant Prunty and Emilio Chacon confronted them. Prunty described himself as a "Norte" and a "Northerner," and specifically identified as a member of the "Detroit Boulevard ... set." His companion Chacon was a member of the Varrio Franklin Boulevard Norteños, based out of South Sacramento.

Prunty, who was wearing a red jacket, approached Manzo, asked him where he was from, and said, "fuck a Skrap, 916." "Skrap" or "Scrap" are derogatory terms Norteño gang members use for Sureño gang members, while "916" is the Sacramento area code. In response, Manzo called Prunty and Chacon "Buster"—a derogatory term for Norteños. The confrontation escalated, with Prunty throwing gang signs and saying "this is Norte, fuck a Skrap, 916," and Manzo and his girlfriend telling Prunty to "keep walking" and calling Prunty and Chacon "Busters." Eventually Manzo advanced on Prunty, and Prunty drew a gun and fired six times. The bullets struck and injured Manzo and his girlfriend's 10–year–old brother.

Prunty was charged with the attempted murder of Manzo and assault with a firearm for shooting the 10–year–old victim. (§§ 664/192, subd. (a), 254, subd. (a)(2).) The prosecution alleged that each of these offenses was committed "for the benefit of, at the direction of, or in association with [a] criminal street gang," and was thus subject to a sentence enhancement under the STEP Act. ( § 186.22(b)(1).) To prove that Prunty qualified for the enhancement, the prosecution introduced evidence from a gang expert, Detective John Sample, a veteran officer with the Sacramento Police Department. Sample—who interviewed Prunty shortly after his arrest—testified that Prunty admitted that he is a "Northerner," or a Norteño gang member, and described his membership in the Detroit Boulevard Norteño "set." Sample also testified that Prunty's clothing and hairstyle, his previous contacts with law enforcement, and his possession of Norteño graffiti, images, clothing, and other paraphernalia were consistent with Norteño gang membership.

Sample's further testimony related to the prosecution's theory that Prunty assaulted Manzo with the intent to benefit the Norteños. Sample testified that the Norteños are "a Hispanic street gang active in Sacramento and throughout California" with about 1,500 local members. Sample explained that Sacramento-area Norteños are not associated with any particular "turf" but are instead "all over Sacramento" with "a lot of subsets based on different neighborhoods." Sample described the "primary activities" of Sacramento-area Norteños as unlawful homicide, attempted murder, assault, firearms offenses, and weapons violations. Sample also testified that Norteños share common names, signs, and symbols, including names derived from "the north, Norteños, [and] northerner," the letter N, the number 14, and the color red. The "Norteños' enemy," moreover, is the Sureño street gang, whose members identify with the color blue, the letters S and M, and the number 13. Both the Norteños and the Sureños "originated out of the California prison systems" in the 1960s and 1970s. The Sureños are associated with the Mexican Mafia prison gang, while the Norteños have a "street gang association" with the Nuestra Familia, or NF, prison gang. Finally, Sample described various other aspects of Norteño and Sureño gang culture generally, including the appearance of gang graffiti and gang signs as well as each gang's use of common derogatory statements about its rivals.

The prosecution relied on Sample not only to describe Norteños and Sureños in general terms, but also to prove that the Sacramento-area Norteños were indeed the ones who committed the two or more predicate offenses that an "organization, association, or group" must commit to coincide with the STEP Act's definition of a criminal street gang. ( § 186.22(f).) First, Sample described a 2007 confrontation between two Norteño gang subsets, the Varrio Gardenland Norteños and the Del Paso Heights Norteños, that led to two Varrio Gardenland members' convictions for a variety of offenses, including murder and attempted murder. Second, Sample testified about a 2010 incident in which members of the Varrio Centro Norteños shot at a former Norteño gang member. Besides Sample's testimony that these gang subsets referred to themselves as Norteños, the prosecution did not introduce specific evidence showing these subsets identified with a larger Norteño group. Nor did Sample testify that the Norteño subsets that committed the predicate offenses shared a connection with each other, or with any other Norteño-identified subset.

The jury acquitted Prunty of attempted murder but convicted him of the lesser included offense of attempted voluntary manslaughter. (§§ 664/192, subd. (a).) It also convicted him of assault with a firearm (§ 245, subd. (a)(2)) and found true the allegations that Prunty personally used a firearm (former § 12022.5, subd. (a)) and committed the offenses at the direction of, in association with, or for the benefit of a criminal street gang ( § 186.22(b) ). The trial court sentenced Prunty to an aggregate term of 32 years in prison.

On appeal, Prunty claimed that the prosecution failed to introduce sufficient evidence to prove that he committed the offenses for the benefit of a criminal street gang, as that term is defined in section 186.22(f). Prunty challenged the prosecution's theory that the relevant "ongoing organization, association, or group" ( § 186.22(f) ...