Menifee v. Superior Court
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Menifee and his codefendants were charged, based on a 2013 home invasion robbery, with first-degree robbery within an inhabited place acting in concert; attempted first-degree robbery within an inhabited place acting in concert; first-degree burglary; first-degree robbery within an inhabited place; attempted robbery of an inhabited building; and active participation in a criminal street gang (Penal Code 186.22(a)). The information alleged firearm and gang enhancements. Based on Menifee’s criminal record, Menifee's tattoos and the facts of the instant offense, a gang expert (Jackson) opined that Menifee was “an active associate of Double Rock criminal street gang.” Jackson agreed that, absent the current offense, Menifee would be an associate, rather than a Double Rock member. Taking the current offense into account, however, Jackson considered Menifee to be a member. Jackson admitted that, to his knowledge, there was no record that Menifee admitted to gang membership when he was arrested in 2013 or at any other time.
Menifee moved to dismiss the gang participation count and the gang enhancement allegations pursuant to section 995. The court of appeal upheld the denial of the motion. While certain components of the gang expert’s testimony were inadmissible, the remaining admissible evidence presented at the preliminary hearing was sufficient to hold Menifee to answer on the gang enhancement allegations and substantive gang participation charge.
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