Opinion
D071448
02-14-2018
THE PEOPLE, Plaintiff and Respondent, v. MARK RUBEN MENDIBLES, Defendant and Appellant.
David M. McKinney, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JCF34304) APPEAL from a judgment of the Superior Court of Imperial County, Christopher W. Yeager, Judge. Reversed. David M. McKinney, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
A first amended information alleged that defendant Mark Ruben Mendibles committed the first degree murder of Hector Francisco Garcia (Pen. Code, §§ 187, subd. (a) & 189); that the murder was committed while defendant was an active participant in a criminal street gang and was carried out to further the activities of the gang (§ 190.2, subd. (a)(22)); that the murder also was committed for the benefit of, at the direction of, and in association with, a criminal street gang, with the intent to promote, further, and assist in criminal conduct by gang members (§ 186.22, subd. ((b)(1)(C)); and that defendant had two prior strikes (§§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i)) and two prior convictions (§ 667.5, subd. (b)). A jury found defendant guilty as charged and found the gang allegations true. The court sentenced defendant to life in prison without the possibility of parole.
All further statutory references are to the Penal Code unless otherwise noted.
On appeal, defendant raises a series of contentions including that the court erred when it instructed the jury with a modified version of CALCRIM No. 521. Under this instruction, the jury was told that defendant could be guilty of first degree murder under either a willful, deliberate, and premeditated theory or under the theory defendant killed the victim while an active participant in a criminal street gang for the benefit of that gang, denoted by the parties and the court as "street gang murder." Respondent the People concede the "street gang murder" portion of the instruction was error, inasmuch as this instruction pertains to a sentence enhancement under section 190.2, subdivision (a)(22) that only applies after a defendant has been convicted of first degree murder, as opposed to being a separate and independent ground of murder in the first instance. Respondent nonetheless contends the error was harmless.
As we explain, we agree there was instructional error in connection with the first degree murder instruction and conclude the error was not harmless beyond a reasonable doubt. We thus find it unnecessary to reach defendant's other contentions. Reversed.
FACTUAL AND PROCEDURAL OVERVIEW
We view the evidence in the light most favorable to the judgment of conviction. (See People v. Osband (1996) 13 Cal.4th 622, 690.)
At all times relevant, defendant was a member of the Brole criminal street gang from Brawley, California. Brole, short for Brawley, is comprised of about 100 members and associates and was established in the 1960's. There are several subsets or "clicks" within the Brole gang and it identifies with the number 13, or "M," which is the 13th letter of the alphabet. "M" in turn is associated with the Mexican Mafia, a prison gang. A subset of the Mexican Mafia is "Sureno," meaning southern in Spanish. Brole gang members associate with and show their allegiance to the Sureno gang both on the streets and in prison.
Garcia, the murder victim, at one point was a member of the East Side Calipat gang. Although not part of the Brole gang, Garcia associated with its members. Garcia, however, was not in "good standing" with the Brole gang because he refused to pay "taxes" to it, despite selling drugs in Brole territory, and because in 2012 he allegedly "snitched" on a gang member when he cooperated with law enforcement after being stabbed.
Garcia was a well-known drug dealer in Brawley. On January 9, 2015, the day he was murdered, Garcia hung out and smoked methamphetamine with Edgar Perez. Perez admitted to being under the influence of methamphetamine when he saw Garcia murdered, as together they had been smoking the drug the entire day, and days before, and thus were what Perez described as "half asleep."
At dusk or shortly thereafter, the two drove in Garcia's car to a gas station in Brawley. Because neither of them had any money, Garcia made a phone call to Daniel Benavides, a Brole gang associate. Benavides came to the gas station a short time later to buy gas for Garcia's car. Perez saw Benavides and Garcia go into the gas station store together.
Perez tried to pump the gas. When the pump would not activate, Perez went inside the store and saw Garcia and Benavides at the cash register. As Perez exited the gas station, he "bumped" into a man who asked Perez for "change." Perez told the man he had no money. The man, in turn, asked Perez if his friend, Garcia, had any money. Perez responded they had no money.
As Perez was pumping the gas, he saw a man wearing a "hoodie" approach Garcia as soon as Garcia exited the store. Perez, who as noted was under the influence, was unsure whether the man wearing the hoodie was the same individual who had just asked him for change. Perez heard words exchanged between the man and Garcia, which Perez noted "got a little bit loud," then saw Garcia attempt to run and the man stab Garcia in the parking lot. Perez tackled the man in the hoodie, and they both fell to the ground. While searching for his fallen eyeglasses, Perez accidently picked up a switchblade knife that was also lying on the ground. Scared at what he had just witnessed and already on probation, Perez got into Garcia's car and drove away.
Benavides bought drugs from, and was involved in the sale of drugs with, Garcia. About a month before the murder, Benavides began selling drugs to support his own methamphetamine use. Because Benavides was selling drugs in Brawley, he was approached by Brole gang members including "Chuchis" and "Dreamer," informing Benavides that he owed the gang "taxes." Benavides estimated Brole gang members approached him about 20 times that same month about paying taxes to the gang.
Benavides was also charged with Garcia's murder. In exchange for providing truthful testimony, the district attorney agreed to strike the gang enhancement against Benavides and allow him to plead guilty to manslaughter and receive an 11-year prison term. Benavides was also given immunity for any drug-related crimes up to January 9, 2015, the day Garcia was murdered.
Brole gang members determined Benavides and Garcia were working as "partner[s]" selling drugs in Brawley. As a result, Brole gang member Chris Vasquez informed Benavides the gang also wanted Garcia to pay taxes. About two days before the murder, Vasquez and Chuchis approached Benavides and said they wanted to talk to Garcia about paying taxes. At the time of their conversation, Benavides was "kind of high." Benavides agreed to call Vasquez if and when he contacted Garcia.
On the day of the murder, Garcia contacted Benavides and asked for "gas money," as noted. Garcia planned to drive to Mexicali to pick up drugs. Benavides agreed to meet Garcia at the gas station where the murder ultimately took place. On the way to meet Garcia, Benavides stopped and met fellow Brole gang member Michael Trigueroz, who was hanging out at a friend's home. Benavides smoked methamphetamine with, and sold some of the drug to, Trigueroz. Benavides stayed at the home about 15 minutes.
Trigueroz also was charged with Garcia's murder. Trigueroz pleaded guilty to manslaughter and a gang enhancement and received an 11-year prison term and a stay of the gang enhancement.
While at the home with Trigueroz, Benavides mentioned he was on his way to meet Garcia. Benavides suggested Trigueroz contact Trigueroz's "boys"—Chuchi and Dreamer—and inform them Garcia was waiting at the gas station about a mile away. Once at the station and before Garcia's murder, Benavides received a call from Trigueroz who wanted to buy more drugs. During that call Benavides confirmed he was at the station with Garcia.
Benavides bought Garcia a drink and something to eat from the gas station store because Garcia had told Benavides he had been involved in some "crazy stuff" the night before in the desert. Benavides took his time inside the store because Benavides knew "somebody was going to show up [and] confront Mr. Garcia" about paying taxes.
Benavides and Garcia left the store together. Benavides saw a man wearing a hoodie approach Garcia in the parking lot and ask, "Do you have any spare change?" As Benavides walked toward his truck, he saw Garcia and the man wearing the hoodie "scuffling" and then saw Garcia start to run. Benavides next heard Garcia yell out "for his mother" and then heard a "scrap[ing]" sound as Benavides saw the man wearing the hoodie on top of Garcia, who had fallen on the ground. Benavides assumed the scraping sound was made by a knife hitting the ground. Benavides next saw the man take off and Garcia stand up. Benavides got into this truck and called out to Garcia to get inside, just before Garcia fell to the ground in front of the entrance to the store. At trial, Benavides identified defendant as the man who stabbed Garcia.
After the stabbing, Benavides went back to the home, confronted Trigueroz, and asked him, "Why did it go down like that? I didn't know it would happen like that." Benavides gave Trigueroz what drugs he had left and then drove off. According to Benavides, Trigueroz was also surprised Garcia had been attacked at the gas station.
Sixteen gas station surveillance cameras—eight inside and eight outside—recorded the entire incident. The video was shown to the jury. The video showed a man talking on a cellphone wearing a "hooded sweater," which concealed the "top of his face but not the front," approach the gas station on foot. The suspect went to the east side of the building and looked through a window inside the store. The video next showed the suspect approaching another subject (i.e., Perez) in the parking lot, and it appeared they had a short conversation.
The video showed Garcia, who was holding a drink and snack, and Benavides exit the store. As Garcia alone walked toward his car, the suspect approached holding a "very large knife," appeared to "surprise" Garcia, and then "attack[ed]" him. Garcia next began to "run for his life" in the gas station parking lot as the suspect chased after him, swinging the knife at Garcia multiple times. At one point, Garcia fell down and the video showed the suspect on top of Garcia, holding Garcia's arms and stabbing Garcia.
During the attack, the suspect's hoodie came completely off his head, showing his "full face." Multiple witnesses identified defendant with "100 percent" certainty as the suspect in the video who attacked and killed Garcia. One such witness was one of the police officers who responded to the murder scene. This officer recognized defendant as the suspect in the video not only as a result of her previous criminal investigations of him in Brawley, but also as a result of her and defendant attending junior high at the same time.
The record shows myriad calls between the phones of defendant, Trigueroz, and Benavides shortly before and after Garcia's murder.
DISCUSSION
A. Additional Background
The court gave CALCRIM No. 521, the first degree murder instruction, but modified it as follows: "The defendant has been prosecuted for first degree murder under two theories: (1) 'the murder was willful, deliberate, and premediated' and (2) 'the murder was committed while the defendant Mark Mendibles was an active participant in a criminal street gang and the murder was carried out to further the activities of the criminal street gang.' [¶] Each theory of first degree murder has different requirements, and I will instruct you on both. [¶] You may not find the defendant guilty of first degree murder unless all of you agree that the People have proved that the defendant committed murder. But all of you do not need to agree on the same theory.
"A. Deliberation and Premeditation
"The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before completing the acts that caused death.
"The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time.
"B. Street Gang Murder
"The defendant is guilty of first degree murder if the People have proved that the defendant murdered while he was an active participant in a criminal street gang and the murder was carried out to further the activities of the criminal street gang. To prove that this special circumstance is true, the People must prove: [¶] 1. The defendant intentionally killed Hector Garcia; [¶] 2. At the time of the killing, the defendant was an active participant in a criminal street gang; [¶] 3. The defendant knew that members of the gang engage in or have engaged in a pattern of criminal activity; [¶] AND [¶] 4. The murder was carried out to further the activities of the criminal street gang.
"The requirements for second degree murder based on express or implied malice are explained in CALCRIM NO. 520, First or Second Degree Murder with Malice Aforethought.
"The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder and the murder is second degree murder."
The record shows outside the presence of the jury, the court and the parties reviewed the proposed jury instructions. Regarding modified CALCRIM No. 521, the court found that it was "correctly edited," absent some "bracket[s]" that needed to be removed, and that a word was misspelled. Otherwise, the court found the instruction acceptable, as did defense counsel.
Although defense counsel did not object to the street gang murder instruction, the issue is not forfeited because the forfeiture rule "does not apply when, as here, the trial court gives an instruction that is an incorrect statement of the law." (See People v. Hudson (2006) 38 Cal.4th 1002, 1012 [noting a " 'party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language,' " but further noting that rule is inapplicable when a "trial court gives an instruction that is an incorrect statement of the law"].)
The record also shows the court and the parties during this same conference discussed the jury verdict forms. During this lengthy discussion, which primarily focused on whether there was evidence to support a lesser included instruction on count 1, the prosecutor reiterated that there were two theories to support a conviction on count 1: "One theory is it was willful, deliberate, premediated murder. The other, it was committed for the purpose of the gang."
Ultimately the jury was given two verdict forms pertaining to count 1, one to find defendant guilty and another to find him not guilty. The guilty verdict form did not, however, differentiate between the two theories of first degree murder. Instead it merely provided: "We, the jury in the above entitled cause, find that the defendant, Mark Ruben Mendibles, GUILTY of a willful, deliberate and premediated 1st DEGREE MURDER, within the meaning of Penal Code sections 187 and 189, as charged in Count One of the Information." The not guilty form used the identical language except it of course included the word "NOT" before the word "GUILTY."
During closing, the prosecutor reminded the jury that defendant had been prosecuted for first degree murder under "two theories," arguing as follows: "Either theory [of murder] is sufficient to find him guilty of first degree murder. You can find him guilty of first degree murder under both theories or one theory. Half of you can decide it's one theory. The other half can decide it's the other theory. Either way it doesn't make any difference, as long [as] you find one of the two theories.
"One, the murder was willful, deliberate, and premeditated. Well, let's talk about that for a minute. Willful, deliberate, and premediated.
"Was it willful when he stuck that blade into his chest? Yes, it was.
"Was it deliberate? You saw the video. He tried numerous times to get that blade into his chest. Yes, it was.
"Was it premediated? Again, he was contacted by Mr. Trigueroz, who gave the location where Mr. Garcia was. Chuchi's right-hand man. He's going there to enforce the Brole gang rules. Pay your taxes and don't be a rat. Mr. Garcia, unfortunately, violated both those rules.
"Premeditated. No doubt about it. You saw him walk up on that cell phone to the front of that gas station. You saw him come out of nowhere as Mr. Garcia is walking back to his van and tried to plunge that knife into him right then and there. When that didn't stop him and Mr. Garcia started running around for his life in that parking lot, what was Mr. Mendibles doing? He was chasing him. He was chasing a man that didn't have a weapon to defend himself with. Wow. If that's not premeditated, then nothing is, folks.
"Two, the murder was committed while the defendant was an active participant in a criminal street gang, and the murder was carried out to further the activities of the criminal street gang.
"Was Mr. Mendibles a Brole gang member? Yes, he was. How do we know that? We had Officer Morales get on the stand and testified he patrolled that area heavily during the time he worked for Brawley Police Department. He knows he's a gang member, Mr. Trigueroz is a gang member, and Mr. Benavides is an associate of that gang by selling the drugs to that gang.
"Mr. Mendibles has the tattoo 'B' on his back, big, bit 'B.' What did Officer Morales tell you? 'B' is the sign of the Brole gang. But we need to go further than that. Right about the time this murder took place or shortly thereafter—we're not sure exactly when—that man had 'S-U-R' tattooed on his body. 'S-U-R,' what did Officer Morales tell us it stands for? Sureno. Sureno. What do you get—how do you become a Sureno? You heard Officer Morales testify. You go to prison and you align yourself with the southern Hispanics. The southern Hispanics want to continue criminal activity inside the prison, selling drugs, assaulting people. That man is down for it. He's ready for it. He wants it. You don't put the word 'SUR' on your body know [sic] that if somebody in prison finds that or sees that and you are not a Sureno—guess what? You are going to have major problems with the Surenos in prison. Major, major problems. No, he's for it. He wants it. He can't wait to get it.
"Now, let's talk about the two theories, the willful, deliberate, and premediated. Defendant is guilty of first degree murder if he acted willfully, deliberately, and with premeditation. Defendant acted willfully if he intended to kill when he acted.
"[¶] . . . [¶] . . .
"Let's go to the other theory, second theory, street gang murder. This is a street gang murder. Defendant is guilty of first degree murder if defendant murdered while he was an active participant in a criminal street gang and the murder was carried out to further the activities of the criminal street gang.
"Again, we have Officer Morales, who testified that man over there is a Broleno. He's OG Broleno, if you really want to get down to it, based on his age. And he was the enforcer for the Brole gang.
"[¶] . . . [¶]
"Now, was this while he was participating in a street gang? What did he [sic] hear for evidence, folks? We heard that, again, Mr. Benavides contacted Mr. Trigueroz and said, 'Hey, Garcia, our boy, is at the . . . [g]as [s]tation with Benavides.' How do we know that? We'll get to the phone calls in a minute.
"Was it to further activities of the street gang? You better believe it. That man is proud to be the enforcer of the Brole gang.
"[¶] . . . [¶]
"He's delighted to be the enforcer. You know, a murderer, you stand 25 feet, 25 yards or 50 yards or 100 yards and you shoot somebody, that's one type of murder. When you have a murderer who wants to get so close up to you that he can see the fear in your eyes as he plunges the knife into you. He can smell your breath. Hear you cry, 'Mama. Mama.' That excites him.
"[¶] . . . [¶]
"So, again, activities of the street gang. How we know he did that for the activities of the street gang? [¶] Well, we know the Brole gang doesn't like rats. And we know Mr. Garcia, when he got stabbed once prior to this in Calipatria, went to the police and told them who did it, that's supposedly a rat. Well, I'd submit that anybody who gets stabbed and can identify their attacker, you'd be foolish not [to], unless you are in a prison setting. Here we are not in a prison setting.
"We're on the streets of Brawley. Brawley. When you think of it, it's a farming community. Brawley. Cattle Call is held there every year. You heard testimony that the Brole gang, Chuchi specifically, supposedly held the keys to Brawley, whatever all that means.
"Wanted tax. Wanted to tax dope dealers in the area, including Valerie Mendibles. In fact, he did tax Valerie Mendibles. He wanted to tax Hector Garcia. Hector Garcia is from Calipatria. For sure they want to tax him. He wasn't doing any of it. He wasn't going to pay the tax. He paid with his life is what he paid. So, yes, definitely furthering the activities of the criminal street gang, his actions."
B. Guiding Principles and Analysis
As noted ante, defendant contends, and respondent the People concede, the "street gang murder" instruction was error because "street gang murder" is not a separate and independent theory of first degree murder, but instead a sentence enhancement that applies, if at all, after a defendant is found guilty of first degree murder. We agree. (See e.g., § 190.2, subd. (a) ["The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following circumstances has been found under Section 190.4 to be true . . . (22) The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22 and the murder was carried out to further the activities of the criminal street gang"], italics added.) The People, however, claim this instructional error was harmless beyond a reasonable doubt because the completed first degree murder verdict form states the jury found defendant guilty of the valid theory of "willful, deliberate and premeditated . . . murder."
Instructional error regarding the elements of the offense requires reversal of the judgment unless the reviewing court concludes beyond a reasonable doubt that the error did not contribute to the verdict. (People v. Cross (2008) 45 Cal.4th 58, 69-71 (conc. opn. of Baxter, J.); People v. Swain (1996) 12 Cal.4th 593, 607.) The case of People v. Perez (2005) 35 Cal.4th 1219 (Perez) informs and guides our analysis on this issue.
In Perez, the defendant was arrested in possession of methamphetamine precursors, which he said he intended to sell to a man known to him only as Antonio. The defendant was charged with possessing precursors with intent to manufacture methamphetamine. The prosecutor proceeded under two theories: (1) the defendant was liable as a direct perpetrator because he possessed the precursors and personally intended to manufacture methamphetamine, or, alternatively, (2) he was liable as an aider and abettor because he possessed the precursors with the intent to sell them to another person to be used in manufacturing methamphetamine. (Perez, supra, 35 Cal.4th at pp. 1223-1224.)
Our high court in Perez concluded a person could not be guilty of aiding and abetting absent proof of criminal conduct by some direct perpetrator (i.e., Antonio). (Perez, supra, 35 Cal.4th at p. 1225.) As such, Perez found the court erred in instructing on aiding and abetting: "Whether the theory was that Perez intended to aid and abet Antonio's actual manufacture of methamphetamine . . . or to aid and abet Antonio's possession of hydriodic acid precursors with the intent to manufacture methamphetamine . . . , no evidence established that Antonio ever violated, or attempted to violate, either statute. Without proof of a criminal act by Antonio to which Perez contributed, the prosecution could not convict Perez as an aider and abettor. [Citations.]" (Id. at p. 1227.) Thus, "Perez could be convicted as a direct perpetrator or not at all." (Ibid.)
Key to the instant case, the Perez court then turned to the issue of harmless error given that the jury had been given both a legally correct (i.e., direct perpetrator) and legally incorrect (i.e., aiding and abetting) instruction. The Perez court noted that when "one of the theories presented to a jury is legally inadequate, such as a theory which ' "fails to come within the statutory definition of the crime" ' (People v. Guiton [1993] 4 Cal.4th [1116,] 1128 [(Guiton)], quoting Griffin v. United States (1991) 502 U.S. 46, 59), the jury cannot reasonably be expected to divine its legal inadequacy. The jury may render a verdict on the basis of the legally invalid theory without realizing that, as a matter of law, its factual findings are insufficient to constitute the charged crime. In such circumstances, reversal generally is required unless 'it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory.' " (Guiton, at p. 1130.)" (Perez, supra, 35 Cal.4th at p. 1233.)
The Perez court found the instructional error was not harmless because "[n]othing in the record establishes that the jury necessarily rejected this theory and instead convicted on the theory that Perez intended personally to manufacture methamphetamine. '[W]hen the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand.' (People v. Green (1980) 27 Cal.3d 1, 69.)" (Perez, supra, 35 Cal.4th at p. 1234.)
In reaching its decision, the Perez court focused both on the closing argument and the verdict, noting the "prosecution argued both theories during closing argument," although it "led with and spent more time arguing its aiding and abetting theory. Defense counsel likewise spent an extended period rebutting this theory, but again, the trial court's rulings precluded him from pointing out its fatal flaw. [¶] The jury returned a general verdict, which offered no clue as to which theory it might have relied on in reaching a . . . conviction. Given the evidence and argument, we are persuaded there is a reasonable probability the jury convicted Perez based solely on the unsupported aiding and abetting theory. Consequently, the errors in instructing on this theory and barring defense counsel from pointing out its flaws were prejudicial." (Perez, supra, 35 Cal.4th at p. 1234.)
Here, modified CALCRIM No. 521 itself, the closing argument, the evidence, and the verdict forms show the instructional error was not harmless beyond a reasonable doubt. Although none of these factors are alone conclusive, when considered collectively they lead us to conclude the instructional error was not harmless beyond a reasonable doubt.
Initially, we note the court in this case went into great detail in instructing the jury on the invalid theory of "street gang murder," as summarized ante. As also summarized ante, the record shows the prosecutor during closing relied extensively on this invalid theory as a basis to convict defendant of first degree murder. The prosecutor reiterated the instruction by the court that the jury could convict defendant on count 1 even if the jury could not agree on the theory of first degree murder that applied in the case. (See People v. Pitts (1990) 223 Cal.App.3d 606, 694 [noting a "prosecutor's closing argument is an especially critical period of trial" because "it comes from an official representative of the People . . . [and thus] carries great weight"].)
The prosecutor in closing also discussed in detail the evidence to support the invalid street gang murder instruction, noting that defendant was a well-known Brole gang member; that defendant could even be considered an "OG [i.e., original gangster] Broleno" based on his age; that defendant was an "enforcer" of the Brole gang who killed Garcia because Garcia refused to pay the gang "taxes" and because Garcia was a "rat"; and that the murder in this case was particularly violent because defendant used a knife and got so close to Garcia he could "see the fear in [Garcia's] eyes" and could "smell his breath."
Moreover, we need not speculate whether the jury relied on, and made findings consistent with, the invalid street gang murder theory. Rather, the record shows the jury found true the "special finding" under section 190.2, subdivision (a)(22) that defendant, "in the commission of the crime of murder . . . killed Hector Garcia while defendant was an active participant in a criminal street gang and the murder was carried out to further the activities of the criminal street gang." Clearly, there is more than a "reasonable probability" the jury also relied on this theory to convict defendant of first degree murder. (See Perez, supra, 35 Cal.4th at p. 1234.)
We note the jury also made a "special finding" that defendant carried out Garcia's murder "for the benefit of, at the direction of, and in association with a criminal street gang" with the intent to promote and assist in criminal conduct by gang members under section 186.22, subdivision (b)(1)(C).
That the signed verdict form for first degree murder included only the single theory of willful, deliberate, and premeditated murder does not change our conclusion in this case. It might have made a difference if the jury had been given two separate verdict forms for count 1, each representing a separate theory of first degree murder prosecuted in this case; and if the jury had signed the verdict form with the valid theory of premediated murder and left the form with the invalid theory blank.
But that is not what occurred in this case. Instead, the jury confusingly was given only one verdict form for count 1 that set out only one theory of first degree murder, while at the same time being told by the court and the People it could convict defendant on an entirely different theory or under both theories. Based on these factors, we cannot conclude on this record that the use of a boilerplate verdict form meant the jury " ' "necessarily found the defendant guilty on a proper theory." ' [Citation.]" (See Perez, supra, 35 Cal.4th at p. 1233.) To conclude otherwise would be engaging in pure speculation.
In light of our decision, we deem it unnecessary to reach defendant's remaining contentions on appeal. --------
DISPOSITION
The judgment of conviction of defendant is reversed.
BENKE, J. WE CONCUR: McCONNELL, P. J. DATO, J.