Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T. Steffen, Judge, Super. Ct. No. 1097581
Linda J. Zachritz, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
A jury found Rithy Neang Khe guilty of being an active member in a criminal street gang, in violation of Penal Code section 186.22, subdivision (a). He argues the conviction must be reversed because it was not supported by substantial evidence and the trial court erred in instructing the jury. While we agree the trial court erred in omitting a portion of Judicial Council of California Jury Instructions (2006-2007) CALCRIM No. 1400 when it instructed the jury, we conclude the error was harmless. We also conclude there was ample evidence to support the conviction and therefore affirm the judgment.
All further statutory references are to the Penal Code unless otherwise specified.
All further references to CALCRIM No. 1400 are to the language of the instruction as it existed at time of trial.
FACTUAL AND PROCEDURAL BACKGROUND
The family of T.Y. was having a barbecue at their house (hereafter the residence). One of the guests was C.H. C.H.’s boyfriend was S.S. Before S.S. arrived at the barbecue, C.H. decided to go for a ride in the vehicle of another guest, Rathana Reach. C.H. was with Reach when S.S. arrived at the barbecue. When she returned, a confrontation ensued between S.S. and Reach. Angry words were exchanged and then Reach walked toward his vehicle. As Reach approached his vehicle to leave, he exclaimed that he had a bullet waiting for S.S. About an hour later, Reach was observed repeatedly “speeding up and down the street” in front of the residence.
Several hours later, Reach returned to the residence with Joe and P.N. in his vehicle. A white Mustang with three other people inside arrived at the same time. Khe was the driver of the Mustang, and Sithy Bin and two females were passengers in the vehicle.
Bin, Khe and the two girls headed to the front of the driveway. S.S., T.Y., and his brother, S.Y., approached the group of four. Angry verbal exchanges ensued. S.S. and S.Y. were telling the others that they did not want any trouble at their house. Khe was saying things like “C-dubb” and “why you trying to disrespect C-dubb.” The girls also were yelling “C-dubb.”
The group of four then returned to the white Mustang. S.S. followed and Bin hit S.S. in the back of the head. T.Y. and his brother went to the aid of S.S. T.Y. saw one of the girls pull out a gun and fire it into the air. T.Y. fell to the ground. When he looked up he saw Bin grab the gun from the girl’s hand. Bin began firing the gun towards the residence. The people in front of the residence also fell to the ground. Bin then returned to the Mustang. Khe got into the Mustang and drove away with his passengers. Reach also returned to his vehicle and drove off with his passengers. T.Y.’s aunt was injured by one of the bullets. T.Y. denied that Khe attempted to calm the situation, recalling only gang-related statements.
P.N. admitted he is a member of the “Crips With Attitude” (hereafter CWA) gang. On the day of the shooting, P.N. was at Bin’s house for a few hours with Bin, Khe, Bin’s brother, Bin’s girlfriend, Joe, and another female. Reach drove up, parked his vehicle, and approached the group. Reach said he had dropped off S.S.’s girlfriend at the barbecue and S.S. became upset. The group decided to return to the barbecue and talk to them to solve the problem. They knew that the younger people at the barbecue belonged to a different gang, the “Devils of the North” (hereafter DOTN).
Everyone got out of their respective vehicles when they arrived at the barbecue. The two groups approached each other. P.N. intended to fight one of the other group members, and he was yelling “C-dubb.” No one else was saying any other gang phrases. P.N. and his gang decided to leave for the park where the two groups could talk some more and probably fight. As P.N.’s group approached their vehicles, S.S. approached, holding an empty 40-ounce bottle of beer. Bin hit S.S., apparently believing S.S. was going to attack him with the beer bottle. A fight ensued, including many gang taunts. During the fight, P.N. heard gunshots and headed for a car. When he got to the car, he saw a girl shooting a gun into the air. The car he was in drove off and he did not see what happened to the gun. P.N. did not know where the second vehicle went. P.N. testified the second vehicle was a primer gray Honda driven by one of the girls. Khe was not the driver of the vehicle.
P.N. admitted being interviewed by an officer about the shooting, but he claimed he was drunk and high on ecstasy and did not know how he had answered the questions posed to him.
N.P. was attending the barbecue when she observed two vehicles arrive, a white Mustang and a small black Honda. The occupants of the vehicles got out and an argument ensued. Eventually a fight broke out between the two groups. N.P. observed a girl pull out a gun and start shooting into the air. A guy then grabbed the gun from the girl and started shooting towards the residence. After about five to seven shots at the residence, the group got into their vehicles and left. N.P. was not able to identify the individual shooting the gun or who was involved in the fight.
S.S. confirmed that when he arrived at the barbecue, his girlfriend, C.H., was not present because she was riding in Reach’s vehicle. S.S. was upset when Reach and C.H. returned, and he exchanged heated words with Reach. Reach then left.
S.S. was unable to identify Reach at trial, but he testified that C.H. was riding in Rathana’s (Reach’s) vehicle, and he identified Reach in a photo lineup prior to trial.
Reach returned later that evening driving his car and accompanied by a white Mustang. Six to eight people exited the two vehicles. Khe was driving the Mustang. The two groups approached each other and words were exchanged. Reach’s group wanted to fight, so it was suggested that the two groups proceed to the park. Gang-related statements were being made by both groups. When S.S. approached Khe to state that he did not want to fight, he was hit by Bin. That is when the fight began.
A short while later a female started shooting a gun into the air. When S.S. looked up again, he saw Bin with the gun shooting at the residence and the people standing near it. After the shooting stopped, the group got back into their vehicles and left. Khe drove away in the Mustang. S.S. heard Khe attempt to calm things down but did not hear him make any gang-related statements.
R.A., C.H.’s brother, testified consistently with S.S.
Ten nine-millimeter casings were recovered from the scene. Ballistics testing established that the casings were fired from a Glock semiautomatic handgun located during a search of Bin’s house.
The information charged Bin, Khe, and Reach with attempted murder (§§ 664, 187), discharge of a firearm at an inhabited dwelling (§ 246), assault with a semiautomatic firearm (§ 245, subd. (b)), and active participation in a criminal street gang (§ 186.22, subd. (a)). In addition the following enhancements were alleged: (1) in counts I and II it was alleged that each defendant was a principal in the offense, and at least one principal in the offense personally discharged a firearm causing great bodily injury within the meaning of section 12022.53, subdivision (d); (2) in counts I, II, and III it was alleged the offense was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b); (3) in count IV it was alleged that Bin personally used a firearm within the meaning of section 12022.5, subdivision (a); and (4) for each count it was alleged that Khe had a prior conviction that qualified as a strike within the meaning of section 667, subdivision (d).
The jury found Khe not guilty of attempted murder, discharge of a firearm at an inhabited dwelling, and assault with a semiautomatic firearm (counts I, II, and III). Khe was found guilty of active participation in a criminal street gang (count IV). The trial court found the strike prior to be true after Khe waived his right to a jury trial on the issue.
Bin was found not guilty of attempted murder, but was found guilty of each remaining count and the applicable enhancements were found true. Reach was found not guilty of counts I, II, and III. The trial court dismissed count IV on Reach’s motion at the end of the People’s case.
DISCUSSION
I. Sufficiency of the Evidence
Khe argues the evidence was insufficient to support his conviction for being an active participant in a criminal street gang, in violation of section 186.22, subdivision (a). A conviction for active participation in a criminal street gang requires the prosecution prove that the defendant (1) actively participated in a criminal street gang; (2) knew that members of the gang engage in or have engaged in a pattern of criminal gang activity; and (3) willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang. (CALCRIM No. 1400.)
Khe essentially concedes the prosecution presented sufficient evidence of the first two elements, but argues there was no evidence of the third element of the crime. Specifically, Khe argues the jury could not find he aided and abetted a felony offense or committed a felony offense because it found him not guilty of the three felonies charged as a result of the confrontation.
Khe points out that the prosecution argued he was guilty of the charged offenses because he aided and abetted their commission by Bin. Therefore, according to Khe, since the jury explicitly found he did not aid and abet in the commission of the charged offenses, it also could not find that he aided and abetted these same crimes when concluding he was an active participant in a criminal street gang. Khe concludes that since there was no evidence that he committed or aided and abetted any other felonious conduct, there was no evidence to support this element of the charged crime.
The People argue that this is nothing more than an inconsistent verdict that the Supreme Court has found permissible. (People v. Palmer (2001) 24 Cal.4th 856, 860-861.)
In his reply brief, Khe asserts he is not basing his argument on the apparent inconsistencies of the verdicts. Instead, he argues the evidence was insufficient to support his conviction, notwithstanding the not guilty verdicts.
The approach taken by Khe in his reply brief is correct. “The United States Supreme Court has explained: ‘[A] criminal defendant … is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts. This review should not be confused with the problems caused by inconsistent verdicts. Sufficiency-of-the-evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt. [Citations.] This review should be independent of the jury’s determination that evidence on another count was insufficient.’ (United States v. Powell (1984) 469 U.S. 57, 67.)” (People v. Lewis (2001) 25 Cal.4th 610, 656.)
While we agree with Khe’s approach, we disagree with his conclusion. There was substantial evidence to support the jury’s conclusion that he aided and abetted the crimes committed by Bin. To prove that Khe aided and abetted Bin, the prosecution was required to establish (1) Bin and Khe were members of a criminal street gang; (2) Khe knew that Bin intended to commit the crime; (3) Khe intended to aid and abet Bin in committing the crime; and (4) Khe’s words or conduct actually aided and abetted Bin in committing the crime. (CALCRIM No. 1400.) Khe aided and abetted Bin’s criminal conduct if he knew of Bin’s unlawful purpose and Khe specifically intended to, and did, aid, facilitate, promote, encourage, or instigate Bin’s commission of that crime. The crimes in question are, of course, firing at an inhabited dwelling and/or assault with a semiautomatic firearm, the crimes of which Bin was convicted.
The question becomes, therefore, was there substantial evidence that Khe knew of Bin’s intent and whether he actually encouraged or facilitated that conduct. To assess the evidence’s sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Maury (2003) 30 Cal.4th 342, 403 (Maury).) The record must disclose substantial evidence to support the verdict—evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Id. at p. 396.) In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. (People v. Boyer (2006) 38 Cal.4th 412, 480.) “Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]” (Maury, at p. 403.) A reversal for insufficient evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support’” the jury’s verdict. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
The same standard governs in cases where the prosecution relies primarily on circumstantial evidence. (Maury, supra, 30 Cal.4th at p. 396.) We “must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.]” (Ibid.) “Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) Where the circumstances reasonably justify the trier of fact’s findings, a reviewing court’s conclusion the circumstances also might reasonably be reconciled with a contrary finding does not warrant the judgment’s reversal. (Ibid.)
After applying these principles, it is clear that there was sufficient evidence to support the jury’s conclusion that Khe aided and abetted Bin in the commission of the two identified felonies. The undisputed facts established that Reach visited a family gathering, apparently as a welcomed guest. The gathering was at the house where S.Y., a known member of the DOTN gang, resided. Reach was a member of the CWA gang. Reach left a short while later with C.H., S.S.’s girlfriend. Predictably, when Reach and C.H. returned, S.S. was upset. A brief encounter resulted, but no blows were thrown.
Reach then joined a gathering with other CWA gang members, including Khe, Bin, and P.N. The group returned to the residence in two vehicles. Although the testimony varied, the jury could have concluded that Khe drove one of the vehicles to the residence and that he was accompanied by Bin. Bin admitted he brought with him his semiautomatic firearm with a 30-round magazine. The evidence established that there were at least 20 rounds in the firearm.
When the two vehicles arrived at the residence, a loud verbal argument began. While the evidence was inconsistent, some witnesses testified that Khe was yelling gang slogans at members of the DOTN gang. Witnesses also testified that the verbal confrontation turned into a physical altercation when Bin hit S.S.
The evidence was uncontroverted that first Bin’s girlfriend, and later Bin, fired the semiautomatic firearm during the altercation. Most of the witnesses testified that Bin’s girlfriend shot the firearm in the air and Bin shot at the residence.
This evidence permitted the jury to draw several relevant inferences. First, the jury could have inferred that Khe was aware that Bin brought the gun to the residence. The jury saw the gun and the magazine and could have dismissed Bin’s claim that the gun was concealed in his pants pocket. The jury also could have inferred that Bin disclosed to Khe and the other members of CWA his intent to bring the gun to the residence.
Moreover, the jury could have inferred that Bin intended at all relevant times to use the handgun at the residence. He brought the gun with him, made sure it was available, and made sure he had ample ammunition with him. It is logical to infer that under these circumstances Bin intended to use the firearm to ensure that the DOTN gang had “appropriate” respect for the CWA gang.
Finally, the jury logically could have inferred that Khe was aware of Bin’s intent. The two were together before Reach arrived at Bin’s residence, heard the same story from Reach, and left together to go to the residence. While the jury did not know exactly what was said by whom, this circumstantial evidence was sufficient to permit the jury to infer Khe knew of Bin’s intent and encouraged Bin. Moreover, Khe’s behavior at the residence (yelling gang slogans) also supported the inference that he intended to, and did, encourage Bin to use his firearm to ensure the “proper” respect for the CWA gang.
As we have explained, the evidence and logical inferences drawn therefrom amply supported each disputed element: (1) Bin and Khe were members of CWA; (2) Khe knew Bin was armed; (3) Khe knew Bin intended to use the firearm at the residence; and (4) Khe intended to, and did, facilitate and encourage Bin in committing the assault. Accordingly, we reject Khe’s assertion that there was insufficient evidence to support the verdict.
II. Instructional Error
The trial court instructed the jury with CALCRIM No. 1400, which explained to the jury the elements it must find to return a guilty verdict on the charge that Khe was an active participant in a criminal street gang, in violation of section 186.22, subdivision (a). The instruction first set forth the elements of the crime and then defined various terms used in the elements, such as active participation, criminal street gang, primary activity, pattern of criminal gang activity, and willful act. The pattern instruction at the time of trial also defined felonious criminal conduct as follows: “Felonious criminal conduct means committing or attempting to commit [any of] the following crime[s]: _________ <insert felony or felonies by gang members that the defendant is alleged to have furthered, assisted, or promoted>.” The pattern instruction continued, “To decide whether a member of the gang [or the defendant] committed ________ <insert felony or felonies listed immediately above and crimes from Pen. Code, § 186.22(e)(1)-(31) inserted in definition of pattern of criminal gang activity>, please refer to the separate instructions that I (will give/have given) you on (that/those) crimes[s].
The instruction read to the jury stated: “To prove that a defendant is guilty of this crime, the People must prove that:
When instructing the jury, the trial court omitted the portion of the pattern instruction that stated “Felonious criminal conduct means …,” but did instruct the jury as follows: “To decide whether a member of the gang or the defendant committed attempted murder, assault with a firearm, or shooting at an inhabited house, please refer to the separate instructions that I will give you on that crime.” Khe argues that by failing to tell the jury that felonious criminal conduct meant the crimes of which Khe and Bin were charged, the trial court failed to instruct the jury on an element of the crime requiring reversal.
Clearly, the trial court should have instructed the jury that “Felonious criminal conduct meant committing or attempting to commit any of the following crimes: attempted murder, assault with a firearm, or shooting at an inhabited house.” As the jury was instructed, the elements of the crime included the requirement that Khe willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang. The sentence omitted by the trial court informs the jury exactly what conduct falls within the definition of felonious criminal conduct.
This error, however, does not require reversal. First, we reject Khe’s argument that the jury was not instructed with all the elements of the crime. The jury accurately was instructed that the elements of the crime were (1) Khe actively participated in a criminal street gang; (2) Khe knew that members of the gang engaged in a pattern of criminal activity; and (3) Khe willfully assisted, furthered or promoted felonious criminal conduct by members of the gang. The issue is whether the omission of the single sentence resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13.) “This test is not met unless it appears ‘reasonably probable’ the defendant would have achieved a more favorable result had the error not occurred. [Citation.]” (People v. Breverman (1998) 19 Cal.4th 142, 149.)
It is not reasonably probable that Khe would have achieved a more favorable result had the trial court not omitted the sentence in question. The jury was instructed that to be guilty of active participation in a criminal street gang Khe must have assisted, furthered, or promoted felonious criminal conduct. According to the evidence, the only conduct that Khe allegedly participated in was the altercation at the residence. All three crimes charged constituted felonious criminal conduct. Moreover, Bin was convicted of committing two of the charged crimes, shooting at an inhabited dwelling and assault with a semiautomatic firearm. Once the jury determined that Bin was guilty of these crimes, the only issue was whether Khe aided and abetted Bin. While it is true there was conflicting evidence about this element, there was no dispute that Bin’s acts were felonious criminal conduct. Both the prosecutor and Khe’s attorney argued the case to the jury, focusing on whether Khe aided and abetted Bin. Accordingly, it is not reasonably probable that Khe would have obtained a better result had the trial court read CALCRIM No. 1400 in its entirety.
Khe’s attorney also attacked the gang allegations by arguing the evidence did not support a finding that CWA was a criminal street gang.
We would reach the same conclusion even if we applied the more stringent Chapman v. California (1967) 368 U.S. 18 standard as urged by Khe because we conclude beyond a reasonable doubt that the instructional error did not contribute to the jury’s verdict.
Khe’s citation to People v. Lamas (2007)42 Cal.4th 516 (Lamas) is misplaced. Lamas considered the interplay between section 12031 (carrying a loaded firearm in public) and section 186.22. A violation of section 12031 typically is a misdemeanor (§ 12031, subd. (a)(2)(G)), unless one of six conditions is present, in which case the crime is elevated to a felony. One of the conditions that would elevate the crime of carrying a loaded firearm in public to a felony is if the defendant is found to be an active participant in a criminal street gang as defined in section 186.22, subdivision (a). As explained above, to violate section 186.22, subdivision (a), a defendant must further or promote felonious criminal conduct by the gang by either committing a felony offense or aiding and abetting a felony offense. In Lamas the prosecution argued that Lamas committed a felony when he carried a loaded firearm in public because he was an active participant in a criminal street gang. To prove Lamas violated section 186.22, subdivision (a), the prosecution argued that he promoted a criminal street gang by carrying a loaded firearm in public while being an active participant in a criminal street gang, the violation which led to his arrest. The trial court instructed the jury pursuant to the prosecution’s theory.
The Supreme Court held that to elevate a section 12031 violation to a felony on the theory that the defendant was an active member in a criminal street gang the prosecution must prove each element of section 186.22, subdivision (a), independent of the current charge. (Lamas, supra, 42 Cal.4th at p. 524.) Since the trial court instructed the jury that Lamas could be found to be an active member in a criminal street gang based on the crime of carrying a loaded firearm in public, a misdemeanor, and permitted a felony conviction for carrying a firearm in public based on the same misdemeanor conduct, the conviction was reversed. (Id. at pp. 525-526.)
Khe’s conviction for violating section 186.22, subdivision (a) was based on two felonies, assault with a semiautomatic firearm and shooting at an inhabited dwelling. The jury was not instructed that Khe could be found to be an active member of a criminal street gang based on misdemeanor conduct. Accordingly, Lamas does not apply.
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, Acting P.J., GOMES, J.
“1. The defendant actively participated in a criminal street gang.
“2. When the defendant participated in the gang, he knew that members of the gang engage in or have engaged in a pattern of criminal activity. And,
“3. The defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang.
“Active participation means involvement with a criminal street gang in a way that is more than passive or in the name only. [¶] The People do not have to prove that the defendant devoted all or a substantial part of his time or efforts to the gang, or that he was an actual member of the gang.
“A criminal street gang is any ongoing organization, association, or group of three or more persons, whether formal or informal:
“1. That has a common name or common identifying sign or symbol;
“2. That has as one or more of its primary activities the commission of robbery, murder, auto theft, and burglary; and,
“3. Whose members, whether acting alone or together, engage in or have engaged in a pattern of criminal activity. [¶] In order to qualify as a primary activity, the crime must be one of the group’s chief or principal activities rather than an occasional act committed by one or more persons who happen to be members of the group.
“A pattern of criminal gang activity, as used here, means:
“1. 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:
“A. Attempted murder, Penal Code Section 664 and 187;
“B. Assault with a firearm, Penal Code Section 245.
“C. Shooting at an occupied dwelling, Penal Code Section 246. And,
“2. At least one of those crimes was committed after September 26th, 1988.
“3. The most recent crime occurred within three years of one of the earlier crimes; and,
“4. The crimes were committed on separate occasions, or were personally committed by two or more persons. [¶] The People need not prove that every perpetrator involved in the pattern of criminal gang activity, if any, was a member of the alleged criminal street gang at the time when such activity was taking place. [¶] The crimes, if any, that establish a pattern of criminal gang activity need not be gang related. [¶] If you find the defendant guilty of a crime in this case, you may consider that crime in deciding whether one of the group’s primary activities was commission of that crime, and whether a pattern of criminal gang activity has been proved. [¶] As the term is used here, a willful act is one done willingly or on purpose. [¶] To decide whether a member of the gang or the defendant committed attempted murder, assault with a firearm, or shooting at an inhabited house, please refer to the separate instructions that I will give you on that crime.
“To prove that the defendant willfully assisted, furthered, or promoted a crime, the People must prove that:
“1. A member of the gang committed the crime;
“2. The defendant knew that the gang member intended to commit the crime;
“3. Before or during the commission of the crime, the defendant intended to aid and abet the gang member in committing the crime; and,
“4. The defendant’s words or conduct did in fact aid and abet the commission of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose, and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime. [¶] If you conclude that the defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abetter. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not by itself make him an aider and abetter.
“If you find the defendant guilty of the crimes charged in Counts 1, 2 or 3, you must then 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. You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime.
“To prove this allegation, the People must prove that:
“1. The defendant committed the crime for the benefit of, at the direction of, or in association with a criminal street gang; and,
“2. The defendant intended to assist, further, or promote criminal conduct by gang members. [¶] A criminal street gang is defined in another instruction to which you should refer. [¶] The crimes, if any, that establish a pattern of criminal gang activity need not be gang related. [¶] If you find a defendant guilty of a crime in this case, you may consider that crime in deciding whether one of the group’s primary activities was commission of that crime, and whether a pattern of criminal gang activity has been proved.”