What is the test for a jury to determine whether a defendant intended to promote, further or assist a gang member's criminal conduct?

Defendant contends insufficient evidence supports the jury's finding he specifically intended to promote, further, or assist a gang member's criminal conduct as required for the gang enhancement under section 186.22, subdivision (b) and the vicarious firearm discharge enhancement under 12022.53, subdivision (d) and (e)(1). (See People v. Mejia (2012) 211 Cal.App.4th 586, 614-615.) We disagree.

The gang enhancement under section 186.22, subdivision (b)(1) requires proof the crime for which the defendant was convicted had been "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 . . . ." The enhancement thus has two prongsthe benefit prong and the intent

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prong. (People v. Villalobos (2006) 145 Cal.App.4th 310, 322.) Defendant disputes only the latter.

In particular, defendant notes there was no evidence Navarrete's family knew defendant or Sanchez were gang members, no percipient witness saw anyone flash a Central Myrtle hand sign in the restaurant despite a surveillance video showing an unknown person making the sign, and that neither he nor Sanchez identified their gang affiliation when Sanchez shot Navarrete. But nothing in the statute requires defendant promote the gang during the offense, only that he promote (or further or assist) criminal conduct by a gang member. (People v. Albillar (2010) 51 Cal.4th 47, 64-67.) This is most often satisfied by evidence the defendant committed the crime with other known gang members. From evidence "the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members." (Id. at p. 68; see also People v. Livingston (2012) 53 Cal.4th 1145, 1171 ["'[I]f substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members'"].) Here, defendant concedes he committed the offense with Sanchez, an active gang member. Accordingly, defendant's intent can be inferred from the circumstances of the offense. The second prong was satisfied by substantial evidence.