Is yelling “Southside LVL!” enough proof a shooting was gang-motivated? That’s the question an appeals court has been wrestling with in a Yakima gang case. The Washington State Supreme Court could be next.

Lawyers involved in the case say it’s likely the state’s highest court will step in after an appeals court this week reversed its own 2012 ruling that overturned the 36 ½-year sentence handed down to a Yakima Norteño named Jesse Antonio Moreno for a 2009 shooting.

At a February 2011 trial, prosecutors presented evidence that Moreno or one of his companions yelled “Southside LVL!” just before then-18-year-old Moreno fired several shots at a man walking home from a basketball game on McKinley Avenue. LVL stands for Little Valley Locos, a Sureño subset. Members of the YPD gang unit testified Moreno and his pals were cruising rival gang territory for targets. The shots missed their intended target, who was not a gang member and called police.

In convicting Moreno, a Yakima County Superior Court jury also agreed the defendant deserved a new sentencing penalty known as a “gang aggravator” that was a key part of 2008 legislation sponsored by state Rep. Charles Ross, R-Naches, to combat violent and random gang crime.

Trial Judge David Elofson tacked on an additional five years to Moreno’s base sentence of 30 ½ years. Co-defendant Joshua Bojorquez was subsequently sentenced to 19 years for his role in the attack.

Last September, however, the Division III Court of Appeals overturned Moreno’s sentence and sent the case back for resentencing.

In its ruling, the appeals court said there was insufficient evidence to prove the attack was gang-motivated. It did not, however, invalidate the aggravator legislation.

The Yakima County Prosecuting Attorney’s Office was already appealing that decision when the same appeals court later struck down Raul Alvarez’s 88-year prison sentence for a 2010 drive-by shooting that targeted four gang rivals sitting on their porch in Sunnyside. None was injured.

Asked to reconsider, the appeals court reversed itself in the Moreno case. Lawyers involved in the case said it’s rare for an appeals court to reconsider and even rarer to actually reverse.

As before, the appeals court noted there is no case law addressing the new gang aggravator. And as before, the appeals court cited existing precedent surrounding an older, more narrow aggravator that holds there must be some evidence an attack was gang-motivated beyond mere membership in a gang.

Prosecutors had complained the court ignored the LVL callout in its first ruling, and indeed the callout was cited by the court in its new ruling.

“Significantly, (the victim) testified a person in the front passenger side of a blue car he identified as Mr. Moreno called out the gang name “Southside LVL” to him shortly before Mr. Moreno shot at him,” wrote Division III Court of Appeals Judge Stephen Brown, a former Yakima County Superior Court judge.

That, coupled with testimony by members of YPD’s gang unit, was enough for a jury to make an inference the shooting was “committed to directly or indirectly cause benefit to a gang,” Brown wrote. He was joined by fellow appeals court Judge Kevin Korsmo.

“Considering all, we conclude, the evidence shows a sufficient nexus between the crime and gang membership to prove the gang aggravator. Therefore, the sentencing court properly imposed an exceptional sentence.”

Judge Dennis Sweeney, who wrote the original decision, stuck with his position and issued a dissenting opinion. He noted the original unpublished ruling was pulled by his colleagues after a judge with the Division II Court of Appeals in Tacoma asked the court to publish the decision, which would have given the ruling extra weight.

“The fact that Mr. Moreno belonged to a gang and was heard calling out a gang name before the shooting, together with general police testimony regarding local gangs, does not establish the requisite nexus between the specific crime and actual gang-related motivations,” Sweeney wrote, adding, “To uphold the aggravating factor on the evidence here would allow the aggravating factor to attach whenever a gang member commits a crime.”

Moreno’s appeal attorney, Dennis Morgan, said he was disappointed the court reversed itself but predicted the state Supreme Court would take the case both for the larger question of interpreting the gang aggravator and the appeals court having trouble making up its mind.

“I think they were right the first time around,” Morgan said of the appeals court. “What the Supreme Court will do, though, is anybody’s guess.”

Troy Clements, the Yakima County deputy prosecutor who prosecuted Moreno and Bojorquez, praised the reversal.

He said that asking a jury to infer intent may be difficult in some cases and is often the product of much circumstantial evidence, this wasn’t the case with the LVL callout

“If that’s not enough, what is?” he said. “People typically don’t announce their motivation for committing a crime. The jurors listened to everything, and it was very clear to them that this was gang-motivated.”

• Chris Bristol can be reached at 509-577-7748 or cbristol@yakimaherald.com. Follow him on Twitter at twitter.com/ChrisJBristol.