Opinion
NOT TO BE PUBLISHED
Super. Ct. No. MCYKCRBF07-624
BLEASE, Acting P. J.
After knocking down and injuring another man in a drunken fight, defendant Miguel Angel Cabrera was charged with three assault offenses (counts one through three), one charge of actively participating in a street gang (count four) and three gang enhancements to counts one through three. A jury found him guilty on counts one, two, and four but found the gang enhancements not true. It found true four 10-year-old convictions for robbery and assault in the State of Washington. He was sentenced to an aggregate term of 30 years to life, including a concurrent sentence on count four. The defendant appeals, principally challenging the count four conviction.
He was charged with assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1) - count one)(all further references to undesignated sections are to the Penal Code), battery with serious bodily injury (§ 243, subd. (d)- count two), assault with a deadly weapon (§ 245, subd. (a)(2)- count three), and actively participating in a street gang (§ 186.22, subd. (a)- count four).
It was alleged that the crimes committed in counts one through three were committed for the benefit of a street gang under section 186.22, subdivision (b)(1), and that defendant had four prior strike convictions from Washington state in 1997.
The term consisted of 25 years to life, plus five years for the prior serious felony enhancement on count 1; 25 years to life, plus five years for the prior serious felony enhancement on count 2, stayed under section 654; and 25 years to life, plus five years for the prior serious felony enhancement, concurrent on count 4.
Count four charged the defendant as follows: “On or about July 6, 2006, [defendant] did unlawfully and actively participate in a criminal street gang with knowledge that its members engage in and have engaged in a pattern of criminal gang activity, and did promote, further and assist in felony criminal conduct by gang members.”
Although the information charged that the count four offense occurred on the same day as the other charged offenses, the jury was instructed that the felonious criminal conduct element of count four meant “assault with a deadly weapon, murder, robbery, and/or attempted robbery.” The People concede that the instruction should have limited the offenses to those charged in the information. However, the only charged offense that came within this definition was count three, assault with a deadly weapon, as to which the jury did not return a verdict.
To avoid this result the People argue that “the only instruction that the jury was provided for [the felonious assault element of count four] was assault with a deadly weapon or force likely to cause great bodily injury... which was charged in counts one and three.” However, assault with force likely to cause great bodily injury was not listed in the definition and count three was the only offense that charged assault with a deadly weapon. As noted, the jury did not return a verdict on that count.
The People impliedly claim that count one also charged assault with a deadly weapon. It did not. It charged assault by means of force likely to produce great bodily injury. The defendant did not use a gun in the assault.
This left the jury with the Washington State offenses as the only candidates that included assault with a deadly weapon. The People emphasized this fact in its argument to the jury that it could meet the felonious criminal conduct element of count four by “us[ing] just his four prior crimes to meet that element.” However, conviction on that ground just repeats the Washington State convictions and constitutes double jeopardy. We shall reverse the conviction for count four.
Defendant also claims there are three clerical errors in the abstract of judgment, one of which is rendered moot by this opinion, one that is conceded by the People, and a third that we conclude is without merit. We will accept the People’s concession and direct the trial court to amend the abstract of judgment accordingly.
BACKGROUND
On July 6, 2006, defendant was drinking heavily at a local bar when he met Curtis Barnum, who also had been drinking heavily. Along with two of his friends, defendant agreed to go home with Barnum, ostensibly to look at Barnum’s workshop.
Once at Barnum’s home, Barnum and defendant argued. Defendant said something about “bad business” and “a deal is a deal” or “that is not the deal.” Barnum offered to give defendant and his two friends a ride back to town. They got in his truck, and Barnum asked his neighbor, Matthew Macias, to drive. Defendant then got out of the truck and began arguing with Barnum again.
During the argument, defendant punched Barnum in the face, knocking him to the ground and causing Barnum to strike the back of his head on the concrete driveway. Macias and another individual, Jason Hansen, ran over to Barnum, and Hansen pushed defendant away. According to Hansen, defendant yelled, “You don’t know me. You don’t know who I am. Norteno. Norte.” A fourth individual, Michael Burns, came over to give Barnum first aid. Defendant ran into the nearby woods, while his two friends ran down the street.
Defendant was arrested approximately one hour later and was taken back to the scene, where he was identified by Hansen and Burns as the man who assaulted Barnum. Meanwhile, Barnum was taken to the hospital where he received three stitches in the back of his head.
Defendant was subsequently charged with assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1) [count 1]; battery with serious bodily injury (§ 243, subd. (d) [count 2]; assault with a deadly weapon (§ 245, subd. (a)(2)) [count 3]; and active participation in a street gang (§ 186.22, subd. (a)) [count 4]. Count 1 included a special allegation that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)), and counts 1-3 included a street terrorism allegation under section 186.22, subd. (b)(1). The indictment also alleged four prior serious felony convictions from Washington in 1997, and four strike priors (the same convictions).
Hansen also claimed defendant hit Barnum with a gun and pointed the gun at Hansen in a threatening manner.
At trial, the prosecution’s gang expert testified that defendant is an active member of “the Original Loco Boys gang,” a subset of the Nortenos based in Yakima, Washington. The expert based his opinion on defendant’s tattoos, his statements about “Norteno” during the assault, defendant’s admissions while in jail that he is a Norteno gang member, and a conversation the expert had with a detective in Washington.
Defendant testified that he suffers from alcoholic blackouts, and thus, remembered very little about the night of the assault. He also admitted having been a member of the Original Loco Boys, but claimed he quit the gang in December 2005 after a severe beating left him in a coma. Defendant also admitted committing the crimes charged here as priors, and that he committed those crimes while he was a member of the Original Loco Boys.
The jury ultimately found defendant guilty on count 1 (assault with force likely to produce great bodily injury), count 2 (battery with serious bodily injury), and count 4 (active participation in a criminal street gang). The jury found true the four prior convictions, but found the gang allegations in counts 1 and 2 not true. The jury was not able to reach a verdict on the great bodily injury allegations in counts 1 and 2, and was not able to reach a verdict on count 3; the court declared a mistrial as to those allegations and that count.
The trial court subsequently ruled that the four Washington felonies, which the jury found true, qualified as prior serious felonies and strike priors under California law. At a later hearing, the trial court denied defendant’s motion to dismiss the strike priors. The court sentenced defendant to an aggregate term of 30 years to life. (See fn. 3, supra.)
The court also determined that defendant should receive 924 days of credit (616 days of actual credit and 308 days of conduct credit). The court ordered a restitution fine of $10,000; a parole revocation fine of the same amount, stayed; and a $60 court security fee. The court reserved jurisdiction over restitution.
Defendant appeals his conviction.
DISCUSSION
On appeal, defendant argues the trial court “improperly instructed the jury that it could base the verdict [on count 4] on [defendant’s] 1997 Washington offenses.” We agree.
Count 4 of the indictment charged a violation of section 186.22, subdivision (a) as follows: “On or about July 6, 2006, MIGUEL ANGEL CABRERA aka MIGUEL ANGEL VEGA – CABRALES, did unlawfully and actively participate in a criminal street gang with knowledge that its members engage in and have engaged in a pattern of criminal gang activity and did promote, further and assist in felony criminal conduct by gang members.”
The jury instructions given as to count 4 provided that the prosecution must prove, among other things, that “THE DEFENDANT WILLFULLY ASSISTED, FURTHERED OR PROMOTED FELONIOUS CRIMINAL CONDUCT BY MEMBERS OF THE GANG EITHER BY, A, DIRECTLY AND ACTIVELY COMMITTING A FELONY OFFENSE OR, B, AIDING AND ABETTING A FELONY OFFENSE.” The jury instructions defined “felonious criminal conduct” to mean “COMMITTING OR ATTEMPTING TO COMMIT ANY OF THE FOLLOWING CRIMES: ASSAULT WITH A DEADLY WEAPON, MURDER, ROBBERY, AND/OR ATTEMPTED ROBBERY.”
When instructing a jury on a violation of section 186.22, the trial court must include in the definition of “felonious criminal conduct” the felony or felonies with which defendant is charged. (See CALCRIM No. 1400.) However, the jury instructions listed only one offense of which defendant was charged, assault with a deadly weapon, and the jury did not find defendant guilty on that charge. On the other hand, with the exception of murder, the jury instructions’ list of offenses constituting “felonious criminal conduct” directly parallel the prior convictions defendant suffered in Washington in 1997. Thus, the jury instructions directed the jury to find defendant guilty of count 4 based on his 1997 Washington convictions.
By listing the crimes for which defendant was convicted nearly 10 years ago in another state, the trial court improperly amended the indictment in violation of the defendant’s Sixth Amendment right to notice of the criminal charges against him. (People v. Seaton (2001) 26 Cal.4th 598, 640-641.) The court also erroneously invited the jury to convict defendant based on crimes committed beyond the statute of limitations (§§ 801, 805, subd. (a)[three-year statute of limitations on street terrorism]), outside the jurisdiction of the California courts (§ 27), and in violation of the constitutional prohibition against double jeopardy. (Schiro v. Farley (1994) 510 U.S. 222, 229-230 [127 L.Ed.2d 47, 56-57].)
The trial court’s error was compounded by the prosecutor’s closing argument, wherein he argued, wrongly, that the prosecution need only prove the four prior convictions in order to satisfy the “felonious conduct” element of count 4: “ELEMENT NUMBER THREE, THAT HE WILLFULLY ASSISTED FURTHER TO,[sic] PROMOTED FELONIOUS CRIMINAL CONDUCT EITHER BY DIRECTLY OR ACTIVELY COMMITTING CRIME. YOU CAN USE JUST HIS FOUR PRIOR CRIMES TO MEET THAT ELEMENT. HERE WE HAVE, AS YOU KNOW, GUILTY PLEA AND CONVICTIONS AND YOU’LL GET THOSE CERTIFIED RECORDS,....
“ANYWAY, YOU GOT THE ROBBERY TWO TIMES, FIRST DEGREE, EACH TIME WITH A GUN. YOU HAD AN ASSAULT BY THE DEFENDANT WITH A GUN ON SOMEBODY ELSE. AND THEN YOU HAVE AN ATTEMPTED ROBBERY ONCE AGAIN, WITH A GUN.” (Italics added.)
The prosecutor’s argument is a clear misstatement of the law and highlights the trial court’s erroneous instruction, which, under the circumstances, cannot be considered harmless. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 711]). Under Chapman, “an error is harmless only when, beyond a reasonable doubt, it did not contribute to the verdict.” (People v. Williams (1997) 16 Cal.4th 635, 689.) Here, the 1997 offenses indisputably occurred and defendant admitted he was a gang member at the time he committed those offenses. In addition, the evidence of defendant’s gang membership at the time he committed the current offenses was not overwhelming, uncontradicted, or dispositive. (Rose v. Clark (1986) 478 U.S. 570, 583 [92 L.Ed.2d 460, 474].) On the contrary, while the prosecution presented some evidence that defendant was a gang member in July 2006, defendant also presented evidence that he quit the gang before committing the current offenses.
Moreover, the jury found the gang enhancements alleged in counts 1 and 2 not true, yet found defendant guilty of actively participating in a gang in count 4. While these may not always be inconsistent verdicts given that the substantive charge of street terrorism does not require defendant to be the person who actually committed the crime, here the verdicts are inconsistent because defendant was the only person charged with committing a crime in July 2006. The inconsistent verdicts explain why the jury followed exactly the trial court’s instruction and the prosecutor’s argument and convicted defendant on the substantive charge of participating in a street gang based solely on his prior 1997 Washington convictions. Accordingly, we cannot say, beyond a reasonable doubt, that the error did not contribute to the verdict reached.
Because the conviction on count four violated the defendant’s constitutional rights he cannot be retried on count four.
Defendant also alleges several errors in the abstract of judgment. First, defendant notes that “line 1 of the abstract should reflect that the sentence on count 2 is stayed under section 654....” The People concede the error. Having reviewed the record, we accept the People’s concession.
Defendant also claims the abstract of judgment fails to reflect “that the sentence on count 3 is concurrent.” Presumably, defendant intended to refer to count 4, as he was not convicted on count 3. However, because we reverse his conviction on count 4, the claim is now moot.
In addition, defendant contends that “line 14 of the abstract does not reflect any credits.” Here, there are two abstracts of judgment: one for defendant’s determinate term of five years and one for his indeterminate term of 25 years to life. At sentencing, the trial court specifically stated that defendant’s credits “would only apply to the determinate term of the consecutive five years,” imposed pursuant to section 667, subdivision (a). Accordingly, defendant’s credits are accurately listed on the abstract of judgment for the determinate term. He is not entitled to receive those same credits on the consecutive indeterminate term; to do so would result in defendant receiving double credit.
DISPOSITION
Defendant’s conviction on count four of the indictment is reversed. The trial court is further directed to include in the amended abstract of judgment that the sentence on count two is stayed pursuant to section 654, and deliver a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON, J., BUTZ, J.