Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside, No. RIF120874, Paul E. Zellerbach, Judge.
McINTYRE, J.
Following arrests for an October 26, 2004 car-to-car shooting, the Riverside County District Attorney charged Hugo Cesar Garcia and Jose Luis Juarez with two counts of attempted premeditated murder (counts 1 and 2), shooting at an occupied vehicle (count 3), and shooting from a motor vehicle (count 4). Included among the special allegations was the claim that as to each count, Garcia and Juarez committed the offenses "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...." (Pen. Code, § 186.22, subd. (b)(1); all further statutory references are to the Penal Code unless otherwise indicated.) The prosecution tried Garcia, the driver, and Juarez, the shooter, in a single trial before separate juries.
In the case before this court, the Garcia jury convicted Garcia of attempted premeditated murder in count 2, and found true allegations that he committed the offense for the benefit of a criminal street gang, and that a principal had personally and intentionally discharged a weapon. The jury was unable to reach a verdict on the remaining counts, and the court declared a mistrial in counts 1, 3 and 4. The court sentenced Garcia to life with the possibility of parole for the attempted murder, a consecutive 20-year term for the firearm enhancement, and ordered that Garcia serve a minimum of 15 years before he was eligible for parole. It dismissed the remaining counts and allegations on the People's motion. The separate Juarez jury convicted Juarez on all four counts, and found true all but one of the special allegations. The Juarez case is not before us.
On appeal, Garcia argues the trial court erred in instructing the jury on aiding and abetting liability and the gang enhancement. Garcia also contends there is no substantial evidence that he knew of or shared in Juarez's intent to kill the victim, and insufficient evidence to support the true finding on the gang enhancement. The Attorney General concedes that the court erred in imposing the 15-year parole eligibility date.
We conclude the trial court prejudicially erred in instructing the jury in accordance with a version of CALCRIM No. 400 which states that "[a] person is equally guilty of the crime whether he committed it personally or aided and abetted the perpetrator who committed it." (Italics added.) We therefore reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Riverside County Sheriff's Deputy Daniel Decker obtained information there had been "some back and forth" between members of the Florencia 13 gang and members of a rival gang known as Varrio Pecan or Pecan Street. Florencia 13 was a large gang based in Los Angeles with a presence in Moreno Valley. Varrio Pecan was a newer gang that originated in Moreno Valley and had only 10 to 15 members in 2004. Decker also heard that someone had shot at John Ocampo, a founding member of Varrio Pecan, at an "am/pm" mini-market sometime before the October 26, 2004 shooting.
Ishmael Toro, who was from Florencia 13, had threatened Juarez, a member of Varrio Pecan, on two occasions. On one of those occasions, about a month before the shooting, Toro and some of his associates approached Juarez, who was holding his baby in front of his girlfriend's house on Vought Street. They pointed a gun at Juarez, but allowed him to take the baby inside. When Juarez came out, Toro was gone. On the second occasion, early on the evening of October 26, 2004, Toro, his brother, and one or two others returned to the home of Juarez's girlfriend in a green car. The men got out of the car and shot at Juarez from 15 to 20 feet away. Juarez ran inside.
Garcia drove up shortly after Toro and his associates had left. Juarez was very angry because someone had just assaulted him with a gun when he had the baby with him. He told Garcia "to give him a ride to go look for them...." Juarez said he wanted to "fuck [th]em up." Garcia and Juarez got in Garcia's black Honda and looked for the shooters in one of their hangouts near Moreno Valley Park. They spotted Jose Perez in a green car, and began following him.
According to Perez, he had been driving in Moreno Valley with his friend Toro shortly before 11:00 p.m. that night. Perez testified he dropped Toro off near Vought Street and started to drive home. Soon he noticed he was being followed by a black Honda, which had a sun roof and primer patch on the left front side. The Honda followed close behind him with its headlights off. Perez sped in and out of traffic on the freeway and thought he had evaded the Honda. However, Garcia and Juarez followed Perez as he left the freeway at Indian Street. Shortly thereafter, Perez heard gunshots and felt bullets hitting his car. He popped his head up briefly and saw someone shooting at him through the Honda's sunroof. The Honda continued down Indian Street without stopping.
Perez tried to turn down a side street and collided with an oncoming car driven by Antonio Saucedo. Saucedo suffered serious injuries as a result of the collision. Although Perez's car was also totaled in the collision, he suffered only minor injuries. Police found four 9-millimeter Luger cartridge casings near the intersection where the two cars came to rest.
Deputy Decker interviewed Perez two days after the shooting. He had frequent contacts with Perez in connection with street fights and knew that Perez associated with members of Florencia 13. Although Perez was initially evasive about who shot at him from the black Honda, he suggested that the only "fool" who would have targeted him were the "guys that live on Pecan Street." Perez identified the driver as "some fool named Hugo." Later in the interview, Perez stated that "[t]he one that probably shot was Chelize." At trial Perez claimed to remember almost nothing about the shooting or his interview with Deputy Decker.
Five days after the shooting, Deputy Decker went to Pecan Street and spoke with Juarez. He found Juarez with his brother George, the Herrera brothers, and Jim Ocampo. After doing a pat down search of the five men, Decker searched the surrounding area for weapons. He found a 9-millimeter handgun and loaded magazine on the grass near where the men were standing. Tests showed that the casings found at the crime scene had been fired from the same handgun. Deputies arrested Juarez. Booking photographs revealed that Juarez had numerous gang tattoos, including the letters "I" and "E" which stood for Inland Empire, and VP which stood for Varrio Pecan.
On November 20, 2004, Perez went to Pecan Street with his associates. He confronted Ramon Rivera, a "friend of Pecan Street, " and fired his gun to "send[] a message... to the guys who live in Pecan Street, " like Juarez. Perez was arrested and charged with attempted murder and assault with a firearm. He was out of custody at the time of trial, and testified under a grant of immunity.
Approximately two and a half months after the shooting, Deputy Decker stopped a black Honda that matched Perez's description of the vehicle involved in the shooting. Garcia was driving and Juarez's brother Frankie was his passenger. The screen saver on the mobile phone carried by Garcia read "I Pecan St E." Garcia told Decker that Jim Ocampo had put the screen saver on his phone. Also stored on the phone were the numbers of several members of Varrio Pecan. Deputy Decker arrested Garcia who agreed to be interviewed.
Garcia told Decker that when he and Juarez caught up with Perez's car, "out of nowhere[] Jose just started shooting at 'em" from the passenger window. Garcia denied knowing that Juarez was armed and maintained it was a total surprise when Juarez pulled out the gun. Garcia acknowledged that the control for the sun roof was on his side of the car. Decker told Garcia that Juarez said that he had fired from the sun roof. At that point, Garcia admitted Juarez had fired five shots in rapid succession from the sun roof. After initially denying that he was aware of the collision that followed the shooting, Garcia stated that he "just kept going straight."
During the interview with Deputy Decker, Garcia repeatedly claimed he thought Juarez intended to beat up the men who assaulted him with a gun. However, Garcia acknowledged that if a rival gang member challenged a member of Varrio Pecan, that member would be obligated to respond and Garcia would be obligated to back him up. Garcia stated that members of Varrio Pecan sometimes turned to him for a ride when it came to "rolling and looking for the opposing gang." He also agreed when Decker said, "[T]hey ain't gonna let you roll with them, if you ain't part of them." Indeed, Garcia had earlier admitted membership in Varrio Pecan.
Deputy George Reyes testified as the prosecution's gang expert. He had been a member of the Moreno Valley Regional Gang Task Force since the end of 2003 and beginning of 2004. Deputy Reyes testified about the general characteristics of gangs, including gang symbols, monikers, and the rules against snitching. He noted that today, unlike the past, gang members commonly denied membership so their admissions could not be used against them later. Thus, law enforcement commonly looked to an individual's regular association with other gang members and participation in their activities to determine gang membership.
Both Deputy Decker and Deputy Reyes testified that pride and reputation controlled every aspect of gang life and criminal conduct established respect on the street. Thus, if a gang member was assaulted by members of a rival gang, he was expected to respond with equal or greater force. A gang member who was assaulted while on his own routinely reported back to his "homies" so they could retaliate together in force. Threats to a rival gang member's girlfriend or child were considered signs of great disrespect that led to retaliation. However, even if a gang member was threatened by a rival gang, he would not report the crime to police, but turn instead to his homies to "take care of business."
Turning to Varrio Pecan, Deputy Reyes opined that the gang's primary activities included burglary, vehicle theft, cultivation of marijuana, and shootings that amounted to attempted murder. He based his opinion on two incidents: (1) Juarez and Sergio Gutierrez – both members of Varrio Pecan – committed residential burglary and vehicle theft in January 2003 resulting in Juarez's conviction of both crimes; and (2) at least one other member of Varrio Pecan had been arrested for cultivating marijuana. In addition, Deputy Reyes was personally aware of a number of unreported crimes committed by Varrio Pecan before the shooting in this case. Conversations with gang members revealed examples of the "back and forth" between Varrio Pecan and Florencia 13 in the form of shootings by Varrio Pecan. Perez, a member of Florencia 13, told Reyes that a bullet hole in the driver's side of his car was the result of an earlier shooting. Deputy Reyes concluded that shooting was an example of the ongoing dispute between Varrio Pecan and Florencia 13.
Deputy Reyes further testified that Garcia was a member of Varrio Pecan at the time of the October 26, 2004 shooting. He based his conclusion on Garcia's constant association with known members of Varrio Pecan, his possession of a mobile phone on which Varrio Pecan's founder had placed gang symbols, and his participation in the shooting of rival gang member Perez in this case. Deputies searched the jail cells belonging to Garcia and Juarez in the fall of 2008. They discovered letters offering support from members of Varrio Pecan and La Grande Familia, a gang friendly to Varrio Pecan.
Deputy Reyes also opined that the October 26, 2004 shooting was done for the benefit of Varrio Pecan, in association with members of that gang, to enhance the gang's stature on the streets.
DISCUSSION
I. Jury Instructions
A. CALCRIM No. 400
The jury convicted Garcia of the attempted premeditated murder of Perez in count 2 on the theory that he aided and abetted Juarez, the shooter. The court instructed the jury orally and in writing on attempted murder and attempted premeditated murder, but provided only the written instruction on assault with a deadly weapon, apparently as it related to the gang enhancement. (CALCRIM Nos. 600, 601 & 875.) The court did not instruct the jury on lesser included offenses of murder. The court also instructed on aiding and abetting liability in accordance with CALCRIM Nos. 400 and 401. Using the fall 2008 version of CALCRIM No. 400, the court informed the jury that:
"A person may be guilty of a crime in two different or separate ways: One, he may have directly committed the crime, and I will call that person the perpetrator; or, two, he may have aided and abetted the perpetrator who directly committed the crime.
"A person is equally guilty of the crime whether he committed it personally or aided and abetted the perpetrator who committed it." (Italics added.)
Next, the court instructed the jury with CALCRIM No. 401 which read in part:
"To prove that the defendant is guilty of a crime based on the theory of aiding and abetting that crime, the People must prove that:
"One, the perpetrator committed the crime;
"Two, the defendant knew that the perpetrator intended to commit the crime;
"Three, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and,
"Four, the defendant's words or conduct did, in fact, aid and abet the perpetrator's commission of that crime."
On appeal, Garcia argues the "equally guilty" language of this version of CALCRIM No. 400 was misleading to his prejudice. Citing People v. McCoy (2001) 25 Cal.4th 1111 (McCoy), People v. Samaniego (2009) 172 Cal.App.4th 1148 (Samaniego), and People v. Nero (2010) 181 Cal.App.4th 504 (Nero), Garcia maintains the erroneous instruction prevented the jury from considering whether he was liable as an aider and abettor for an offense less than the offense committed by Juarez. He suggests the jury was forced to convict him of attempted premeditated murder even though it did not believe he harbored the required mental state. In support of his claim the error was prejudicial, Garcia highlights the lengthy jury deliberations, notes from the deliberating jury that focused on aiding and abetting liability, and the court's responses to the jury's questions.
1. Forfeiture
Garcia concedes that trial counsel failed to object to the "equally guilty" language in CALCRIM No. 400 at trial. The Attorney General argues Garcia forfeited the issue on appeal. We agree with Garcia that the issue is properly before us under section 1259, which provides that "[t]he appellate court may... review any instruction given... even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby." The cases equate "substantial rights" with reversible error-whether the error resulted in a miscarriage of justice. (People v. Christopher (2006) 137 Cal.App.4th 418, 426-427; see Cal. Const. art. VI, § 13.) As we explain, the "equally guilty" language of CALCRIM No. 400 affected Garcia's substantial rights by preventing the jury from giving the necessary consideration to Garcia's mental state in determining the extent of his liability as an aider and abettor. We therefore find it unnecessary to consider whether trial counsel's failure to object denied Garcia effective assistance of counsel. (See People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.)
2. The "Equally Guilty" Language Is Misleading
In McCoy, supra, 25 Cal.4th 1111, the Supreme Court held that when the prosecution does not rely on the natural and probable consequences theory of aider and abettor liability, the aider and abettor may be guilty of a homicide-related offense greater than that of the direct perpetrator. (Id. at pp. 1118-1120.) The McCoy Court examined the nature of aiding and abetting liability and explained that "[a]ider and abettor liability is... vicarious only in the sense that the aider and abettor is liable for another's actions as well as that person's own actions. When a person 'chooses to become a part of the criminal activity of another, [he] says in essence, "your acts are my acts...." ' (Dressler, Reassessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to an Old Problem (1985) 37 Hastings L.J. 91, 111, quoted in People v. Prettyman [1996] 14 Cal.4th [248, ] 259.) But that person's own acts are also [his] acts for which [he] is also liable. Moreover, that person's mental state is [his] own; [he] is liable for [his] mens rea, not the other person's." (McCoy, at p. 1118.) The Supreme Court concluded in McCoy: "The statement that an aider and abettor may not be guilty of a greater offense than the direct perpetrator, although sometimes true in individual cases, is not universally correct. Aider and abettor liability is premised on the combined acts of all the principals, but on the aider and abettor's own mens rea. If the mens rea of the aider and abettor is more culpable than the actual perpetrator's, the aider and abettor may be guilty of a more serious crime than the actual perpetrator." (Id. at p. 1120.)
Samaniego, supra, 172 Cal.App.4th 1148, relied on McCoy in addressing a claim of error in the instructing with CALCRIM No. 400. (Samaniego, at p. 1163.) The jury had convicted each of the three defendants of two counts of first degree murder in gang-related shootings. (Id. at pp. 1152-1153.) Because there was no evidence to identify the shooter in one of the murders, the prosecution relied on aiding and abetting liability and the trial court instructed the jury with the same "equally guilty" language at issue here. (Id. at p. 1162-1163.) Samaniego argued that CALCRIM No. 400 erroneously "required the jury to convict [defendants] of first degree murder as aiders and abettors regardless of their mental state, thereby eliminating the need for the jury to make factual determinations regarding appellants' intent, willfulness, deliberation and premeditation." (Samaniego, at p. 1163.) On appeal, the court ruled that Samaniego forfeited his claim by failing to object below, and, in any event, the error would have been harmless. (Id. at pp. 1163, 1165.) The court nonetheless acknowledged that the reasoning in McCoy "leads inexorably to the further conclusion that an aider and abettor's guilt may also be less than the perpetrator's, if the aider and abettor has a less culpable mental state. [Citation.] Consequently, CALCRIM No. 400's direction that '[a] person is equally guilty of the crime [of which the perpetrator is guilty] whether he or she committed it personally or aided and abetted the perpetrator who committed it' (CALCRIM No. 400, italics added), while generally correct in all but the most exceptional circumstances, is misleading... and should have been modified." (Samaniego, at pp. 1164-1165.)
Nero, supra, 181 Cal.App.4th 504, directly addressed the merits of the claim that CALJIC No. 3.00, an aiding and abetting instruction which included the "equally guilty" language, was misleading on facts similar to those in the case before us. Bennie Nero got into a fight with Milton Yates which resulted in Nero fatally stabbing Yates. The prosecution charged Nero and his sister Lisa Brown with murder on the theory that Brown handed Nero the knife. The court instructed the jury on first and second degree murder, voluntary manslaughter, and aider and abettor liability in accordance with CALJIC No. 3.00 which read in part: " 'Persons who are involved in committing or attempting to commit a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation, is equally guilty. Principals include those who directly and actively commit or attempt to commit the acts constituting the crime, or, two, those who aid and abet the commission or attempted commission of a crime.' " (Id. at p. 510; italics in original.) In closing argument, the prosecutor reiterated, " 'A principal could be the person who is the killer. A principal could be a person who aids and abets. They're equally liable.' " (Id. at p. 510.) During deliberations, the jury asked if it could find Brown, the alleged aider and abettor, less culpable than Nero, the direct perpetrator. (Id. at pp. 507, 509, 511-513.) Following a lengthy exchange between the court and members of the jury, the court re-read the instruction stating that principals, including aiders and abettors, were equally guilty. (Id. at pp. 510, 512-513.) Thereafter, the jury found both Nero and Brown guilty of second degree murder. (Id. at pp. 507, 513.)
On appeal, Brown claimed instructional error. (Nero, supra, 181 Cal.App.4th at p. 510.) The Nero court held that CALJIC No. 3.00 could be misleading "even in unexceptional circumstances." (Id. at p. 518, italics added.) It found prejudicial error and reversed the Brown's conviction. (Id. at pp. 518, 520.) Holding that the "equally guilty" language of CALJIC No. 3.00 was misleading, the Nero court cited McCoy's reasoning that an aider's mens rea is personal, may be different from that of the direct perpetrator, and that " 'guilt is based on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state.' " (Nero, at p. 514, quoting McCoy, supra, 25 Cal.4th at p. 1117.)
The reasoning of Nero applies in this case. Like Lisa Brown in Nero, Garcia was charged with murder solely on the theory of aiding and abetting liability. Among the jury's 20 questions during the nearly seven days of deliberations, several focused on the issue of Garcia's mental state and whether the jury could find him less culpable than Juarez. We find no merit in the Attorney General's attempt to distinguish Samaniego and Nero on grounds they involved "multiple defendants tried together, one of whom was the principal, and the others [who] were aiders and abettors" and Garcia was "tried alone." To the contrary, Garcia and Juarez were tried together, albeit with separate juries. With limited exceptions, the two juries heard the same evidence and, as in Nero, the question of the aider and abettor's knowledge and intent was in dispute. (See Nero, supra, 181 Cal.App.4th at p. 519.) Accordingly, we conclude the "equally guilty" language in the fall 2008 version of CALCRIM No. 400 was misleading in the circumstances of this case.
It appears McCoy, Samaniego and Nero led to the removal of the "equally guilty" language from the current version of CALCRIM No. 400. (See CALCRIM No. 400 (Fall 2008 ed.) p. 141 [the version used at trial in this case]; CALCRIM No. 400 (Fall 2009 ed.) Bench Notes, p. 145 [which placed the "equally guilty" language in brackets]; and CALCRIM No. 400 (Summer 2010 ed.) Bench Notes, p. 143 [which removed the "equally guilty" language from the instruction].) Although jury instructions do not constitute precedent, the evolution of CALCRIM No. 400 supports a conclusion that the "equally guilty" language should not be included in aiding and abetting instructions.
3. The Error Was Prejudicial
Next, we turn to the question whether the error in instructing with the "equally guilty" language of the earlier version of CALCRIM No. 400 was prejudicial. As we explain, we cannot say beyond a reasonable doubt, based on the state of the evidence, the questions posed by the jury, and the court's responses, that Garcia would have been found guilty of attempted premeditated murder absent the error. (Nero, supra, 181 Cal.App.4th at pp. 518-519, citing Chapman v. California (1967) 386 U.S. 18, 24.)
To convict Garcia as an aider and abettor, the jury had to find, among other things, that Garcia knew Juarez intended to commit attempted premeditated murder, and Garcia intended to aid and abet Juarez in committing that crime. (People v. Beeman (1984) 35 Cal.3d 547, 561; CALCRIM No. 401.) Garcia's knowledge and intent were both at issue and the jury could have drawn opposing inferences from the direct and circumstantial evidence. The jury could have reasonably inferred that Garcia knew Juarez was armed and intended to shoot at any member of Florencia 13 he could find. Alternatively, the jury could have reasonably inferred that Garcia was unaware Juarez was armed and intended to help him find and merely beat up the rival gang members who has shot at him. However, CALCRIM No. 400 told the jury that "[a] person is equally guilty of the crime whether he committed it personally or aided and abetted the perpetrator who committed it." There is no dispute that Juarez was the shooter.
The Attorney General asserts that any error was harmless because the jury resolved the issue against Garcia under other instructions, namely, the instructions on attempted murder. Noting that the court instructed the jury with CALCRIM No. 600, the Attorney General maintains the prosecution had to prove not only that "defendant" took a direct but ineffective step toward the murders, but that he intended to kill Perez. (Italics added.) The difficulty with this argument is that CALCRIM No. 600 applies only to a direct perpetrator and the prosecution tried Garcia on the theory he aided and abetted Juarez, the perpetrator.
The jury instructions precipitated a series of notes and extended discussion among the court, counsel and jury, which demonstrate that Garcia was misled and prejudiced by the wording of CALCRIM No. 400. The jury began deliberations mid-afternoon on
May 4, 2009. It deliberated all day on May 5. At the end of the day, the jury sent the court the following question: "If believed defendant had intent of harm, not specific to the charged crime (attempted murder), does this support guilty finding of aiding & abetting?" The court and counsel agreed the jury was asking: "'[I]f the jurors believe
Mr. Garcia's statement to law enforcement, that Mr. Juarez just asked him to drive the car to find Mr. Perez so that they could beat him up, does that intent to harm constitute aiding and abetting so that he could be legally found guilty of the charge of attempted murder?'" Garcia's trial counsel asked the court to answer the question directly, "No." Reasoning that court and counsel were speculating about the focus of the jury's question, the court declined to respond directly and, instead, directed the jury back to CALCRIM Nos. 400 and 401, and re-read a portion of CALCRIM No. 401.
The jury deliberated all day on May 7, asking questions about other issues. On the morning of May 11, the next court day, the jury indicated it had reached a verdict on count 2 but was "at a standstill" on counts 1, 3 and 4. Later in the day, the jury asked for a read back of Deputy Reyes's testimony on cross-examination by Juarez's trial counsel about the "knowledge of gun & passenger to shoot." The jury clarified it wanted to hear the portion of the transcript when "Dep. Reyes said-Garcia is okay since he had no idea the passenger was going to shoot." Later the same day, the jury asked for further argument by counsel on, among other things, "Hugo's gun knowledge."
Although not evidence, the prosecutor's closing argument reinforced the problem created by CALCRIM No. 400. When arguing for Garcia's conviction as an aider an abettor, she told the jury:
" 'But wait a minute, Hugo Garcia wasn't the shooter....' The law says even though Hugo Garcia was not the shooter, you can still find him liable of attempted murder. And this is how-under a theory of aiding and abetting. [¶] The law says that you can be guilty in two ways: One, you can commit the crime directly, which is what Jose Juarez did as the shooter, right? Or two, you can aid and abet the commission of the crime-Hugo Garcia. And when you do that, you are just as guilty, just as liable, just as responsible."
The prosecutor continued in rebuttal: "And you might be saying to yourself... 'But Hugo Garcia, he didn't pull the trigger. This isn't fair. He is just an aider and abettor.' And when you do that, you are not following the law. You are holding yourself above the law. And we do not do that." Finally, during the additional argument requested by the jury, the prosecutor described a "kill zone" that encompassed the vehicle driven by Saucedo, then stated:
"Hugo Garcia is responsible for what he and Jose Juarez created that night. And make no mistake. Jose Juarez could not have done this crime without Hugo Garcia. He was the driver. He was controlling this machine moving down the street. And so Hugo Garcia as an aider and abettor, he's just as responsible, just as liable for that.... [¶] Jose Juarez had the intent to kill Jose Perez, he also intended to kill anyone else within that kill zone.... And Hugo Garcia shared in that because he was the driver of that car. And the law says you are just as liable. You are just as responsible."
Here, like Nero, the instructional error was not harmless. Given the state of the evidence, we cannot say beyond a reasonable doubt that Garcia would have been found guilty of attempted premeditated murder absent the error. (Nero, supra, 181 Cal.App.4th at p. 519.)
4. Sufficiency of the Evidence
The attempted premeditated murder charge in count 2 is subject to retrial for instructional error. (See Nero, supra, 181 Cal.App.4th 519-520.) However, if there is insufficient evidence to support that conviction, as argued by Garcia, retrial is barred by the Double Jeopardy Clause. (Burks v. United States (1978) 437 U.S. 1, 11; People v. Belton (1979) 23 Cal.3d 516, 527.) We conclude, based on the evidence detailed in the statement of facts (see pp. 3-10, ante) and inferences to be drawn from that evidence, that a properly instructed jury could have found Garcia guilty of that offense as an aider and abettor. Accordingly, retrial is proper.
B. CALCRIM No. 1401
Count 2 included the special allegation that Garcia committed premeditated attempted murder "for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist any criminal conduct by gang members, within the meaning of... section 186.22, subdivision (b)." For the guidance of the court on remand, we also consider and reject Garcia's claim that CALCRIM No. 1401, the instruction on criminal street gangs, is misleading.
CALCRIM No. 1401, read in part:
"If you should find the defendant guilty of the crime -- of any of the crimes charged in Counts 1 through 4, then you must decide whether for each crime the People have proved the additional allegation that the defendant committed that crime for the benefit of, at the direction of, or in association with a criminal street gang.
"[¶]... [¶]
"A criminal street gang is any ongoing organization, association, or group of three or more persons, whether formal or informal; that has a common name or common identifying sign or symbol; that has as one or more of its primary activities the commission of attempted murder, assault with a firearm, vehicle theft or burglary; and whose members, whether acting alone or together, engage in or have engaged in a pattern of criminal gang activity.
"[¶]... [¶]
"A 'pattern of criminal gang activity, ' as that term is used here, means the commission of, the conviction of, or having a juvenile petition sustained for the commission of any combination of two or more of the following crimes or two or more occurrences of one or more of the following crimes: That being attempted murder, assault with a firearm, vehicle theft, or burglary; at least one of those crimes was committed after September 26th, 1988; the most recent crime occurred within three years of one of the earlier crimes; and the crimes were committed on separate occasions or were personally committed by two or more persons.
"To decide whether a member of the gang or the defendant committed the crime[] of attempted murder... please refer to the separate instructions that I will give you on [that crime]. The crimes, if any, that establish a pattern of criminal gang activity need not be gang related. The People need not prove that the defendant is an active or current member of the alleged criminal street gang." (Italics added.)
Here, the jury convicted Garcia of only one of four counts. Garcia maintains that "to establish a 'pattern' of two predicate offenses, Juarez's juvenile adjudication for burglary and auto theft must be valid for this purpose, even if there was no evidence that Juarez was a gang member at that time, and despite the fact that it was speculative whether or not the newly formed Pecan Street gang existed at that time." Garcia contends that "the predicate crimes [must] be committed by gang members who were gang members at the time the offenses were committed, or... that the gang be in existence when the predicate crimes were committed." He therefore argues that the jury was misled by the admonition that crimes used to establish criminal gang activity "need not be gang-related." There is no merit in this argument.
In People v. Augborne (2002) 104 Cal.App.4th 362 (Augborne), defendant argued that in the absence of evidence the gang members were members of the gang when they committed the predicate offenses, the evidence was insufficient to support the gang enhancement. The court rejected that argument and held that "when a member of a gang commits a predicate offense, section 186.22, subdivisions (b) and (e), do not require the prosecution to prove the individual committing the crime was a gang member at the time of its commission." (Id. at p. 371.) The Augborne court reasoned that "[d]efendant's legal contention that the two section 186.22, subdivision (e) predicate crimes had to be committed by two persons when they were gang members requires we add an additional element to section 186.22, something we are prohibited from doing." (Id. at p. 375.) The court also relied on People v. Gardeley (1996) 14 Cal.4th 605, where the Supreme Court held that "[n]othing in this statutory language suggests an intent by the Legislature to require the 'two or more' predicate offenses to have been committed 'for the benefit of, at the direction of, or in association with' the gang...." (Id. at p. 621.) Later, in a footnote, the Supreme Court clarified that its holding "that the 'two or more' statutorily enumerated offenses that establish the 'pattern of criminal gang activity' described in section 186.22, subdivision (e) need not be 'gang related' does not absolve the prosecution of proving that the charged offense is gang related....Thus whenever the prosecution relies on the charged offense to establish one of the 'two or more' offenses necessary to show a pattern of criminal gang activity (§ 186.22, subd. (e)), the prosecution must prove that the offense was gang related." (Id. at p. 625, fn. 12.) Citing Gardeley, the Augborne court explained that "[i]t reasonably follows then that the prosecutor need not demonstrate that the two or more individuals who committed the predicate crimes were gang members at the time the offenses were committed." (Augborne, supra, 104 Cal.App.4th at p. 375.)
Garcia acknowledges Augborne, but contends the decision "is flawed and should not be followed." He asserts that "Augborne's holding reaches too far by grandfathering in all the past criminal history of every individual, offenses committed even before the individual joined the gang, and, as in this case, even before the gang was formed." Garcia argues section 186.22 must be interpreted in context and the operative phrase of the statute is "pattern of criminal gang activity." (Italics in original.) In addition, Garcia maintains Gardeley does not support the reasoning of Augborne because "[t]he issues of whether the prosecution had the burden to prove that the individual who committed the predicate crime was a gang member at the time of its commission, and the burden to prove that the gang existed at that time, were not before the Gardeley court."
Garcia offers no case authority to support his argument that Gardeley and Augborne interpret the language of section 186.22, subdivision (e) incorrectly. Because both Gardeley and Augborne remain good law, we conclude CALCRIM No. 1401 properly informed the jury that the predicate offenses "need not be gang related." If, on retrial, Garcia believes further clarification or amplification of CALCRIM No. 1401 is necessary, he must request further instruction at trial or risk forfeiture of the issue in any subsequent appeal. (See People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012.)
Garcia also contends there is insufficient evidence to support the gang enhancement. We reject that contention, based on the evidence set forth in the statement of facts (see pp. 3-4, 6, 7-10, ante). Retrial of the enhancement is therefore proper.
II. Remaining Issues
Given our conclusion the court prejudicially erred in instructing the jury, and that Garcia is entitled to retrial, we need not address the remaining issues raised by Garcia in this appeal.
DISPOSITION
The judgment is reversed.
I CONCUR: NARES, Acting P. J.
HALLER, J., Concurring and Dissenting:
I agree with the majority's conclusion that the trial court erred in instructing the jury in accordance with the 2008 version of CALCRIM No. 400, but disagree that the error was prejudicial.
Count 2 of the information charged Hugo Garcia with the attempted premeditated murder of Jose Perez. Relevant to that count, the jury heard evidence that about a month before the shooting incident, members of Florencia 13 approached rival gang member Jose Juarez and pointed a gun at him while he was outside his girlfriend's house holding his baby. On the evening of the charged shooting, Florencia 13 gang members returned to this same location and shot at Juarez from about 15 to 20 feet away. Juarez ran inside uninjured and the men left in a green car.
Shortly thereafter, Garcia arrived at the house and spoke with Juarez, who was very angry. The two left in Garcia's Honda looking for the shooters in one of their known hangouts. They spotted victim Perez in a green car and began following him along the freeway and on to Indian Street. After Perez exited the freeway, he heard gunshots, felt bullets hitting his car, and saw someone shooting at him through the sunroof of the Honda.
In interviews with the police after the incident, Garcia acknowledged that he was the driver of the Honda, but denied that he knew that Juarez was armed and insisted that it was a total surprise when Juarez pulled out the gun and started shooting. Garcia maintained that Juarez told him "to give him a ride to go look for" the shooters and that Juarez said he wanted to "fuck [th]em up." Garcia repeatedly stated that he thought that Juarez intended to beat up the men who assaulted him with a gun.
Garcia also told the police that he and Juarez were members of the same gang (Varrio Pecan); that if a rival gang member challenged a member of Varrio Pecan, that member would be obligated to respond and Garcia would be obligated to back him up; and that members of Varrio Pecan sometimes turned to him when it came to "rolling and looking for the opposing gang." Garcia admitted that Juarez had fired five shots in rapid succession from the sunroof and that the control for the sunroof was on his side of the car.
Based on this state of the evidence, the majority concludes that the "equally guilty" language in CALCRIM No. 400 was prejudicially misleading. I disagree.
As to count 2, it was undisputed that Juarez was charged as the perpetrator and Garcia as his aider and abettor. The jury was properly instructed that it could not find Garcia guilty unless it found that Juarez committed the crime of attempted murder; that Garcia knew that Juarez intended to commit the crime; before or during the commission of the crime, Garcia intended to aid and abet Juarez; and that Garcia did in fact aid and abet Juarez's commission of the crime. (CALCRIM No. 401.) It was also instructed of the elements necessary to establish the crime of attempted murder (CALCRIM No. 600), the fact that this crime was a specific intent crime, and the definition of specific intent (CALCRIM No. 252). The Garcia jury was not instructed on any lesser included offenses.
In closing arguments both the prosecutor and Garcia's attorney emphasized the point that Garcia could not be found guilty of attempted murder unless the jury concluded that when he and Juarez went looking for Juarez's assailants, Garcia knew that Juarez intended to confront and shoot any of the assailants they located. The prosecutor stressed the evidence that supported the contention that Garcia knew precisely what Juarez had in mind. She emphasized the fact that Juarez and Garcia were members of the same gang and were expected to back each other up when confronted by rival gang members; Garcia had been the driver in prior efforts to locate and confront rival gang members; he knew Juarez was very angry the night of the second assault; his car showed evidence of prior gunshot damage; he drove at high speed with his lights off while following Perez; and Juarez shot from the sunroof which was controlled from Garcia's side of the car. Garcia's attorney argued there was no prior knowledge and relied on Garcia's assertions that he had no idea Juarez had a gun or intended to use it.
As the majority points out, during deliberations the jury advised that it had reached a verdict on count 2 but was at an impasse on the remaining counts. At the court's urging, the jury continued to deliberate. It asked additional questions and requested additional argument on specific topics. These included questions about Garcia's knowledge about the gun. In follow-up arguments, both the prosecutor and defense attorney referred to count 2 and reminded the jury that to find Garcia guilty, it had to conclude that he knew Juarez had a gun and intended to use it.
Garcia's knowledge of Juarez's intentions when they set out to find the assailants was the key factual determination the jury had to make in the case as the evidence supporting the remaining elements of the crime were well established. In short, the jury had to decide: Did it believe Garcia's version or the circumstantial evidence supporting the prosecution's theory of the case? If it concluded Garcia knew of Juarez's intentions, Garcia was guilty of attempted murder; if it had a reasonable doubt or credited Garcia's assertions, he was not guilty of this charge. Although it is clear that the jury struggled with this critical factual dispute, the record shows the jury knew that the pivotal inquiry was whether Garcia knew of Juarez's intentions to shoot at his assailants.
Count 2 was charged, presented, argued and instructed, as an all or nothing proposition. Garcia was either guilty of attempted murder or not guilty of this count. There was no other alternative. If the jury rejected Garcia's account and credited the prosecution's, Garcia was guilty of attempted murder and necessarily shared the same mental state as Juarez. In other words, he was "equally guilty "as the perpetrator. Under these circumstances, I conclude that the misleading language in CALCRIM No. 400 was not prejudicial.
I concur with the majority's conclusion as to other issues reached in this appeal.