What is the current state law in support of a defendant's claim that he committed crimes solely at the direction of his criminal street gang?

Appellant says, however, that there is state law in support of his position that in order for the gang special circumstance and enhancements to be upheld, the evidence must show he committed the crimes solely at the direction of, or to benefit, his criminal street gang, or solely to further the activities of the gang. As authority, he relies on People v. Ramirez (2009) 172 Cal.App.4th 1018. However, that case was ordered depublished on July 8, 2009 (S173336), and so may not be cited.²²

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Appellant also cites a case from this court, People v. Ramon (2009) 175 Cal.App.4th 843. In that case, the People's gang expert relied on the fact that the defendants were gang members in their gang's territory. From these two facts, along with the crime the defendants were accused of committing, the expert opined that the crime was committed for the benefit of the gang and was intended to promote that gang. (Id. at p. 849.) On appeal, we found insufficient evidence to uphold the gang enhancement. (Id. at pp. 851-852.) Appellant seems to suggest we did so because the possibility the crimes were committed to benefit the gang was only one conceivable scenario, and mere possibilities are not substantial evidence. To the extent our holding might be so summarized, it does not support appellant's claim the evidence is insufficient if it shows the existence of dual intents or purposes. Rather, we concluded that "[t]he People's expert simply informed the jury of how he felt the case should be resolved. This was an improper opinion and could not provide substantial evidence to support the jury's finding." (Id. at p. 851.) Because "[t]he facts on which [the expert] based his testimony were insufficient to permit him to construct an opinion about [the defendant's] specific intent in this case," that opinion could not "constitute substantial evidence to support the jury's finding on the gang enhancement." (Id. at p. 852.) Such was not the situation in appellant's case.