Opinion
G056418
03-25-2020
THE PEOPLE, Plaintiff and Respondent, v. LUIS MIALMA, Defendant and Appellant.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Yvette M. Martinez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CF0621) OPINION Appeal from a judgment of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed in part and reversed in part. Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Yvette M. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Luis Mialma of attempted murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a)) (count 1), being an active gang member carrying a loaded firearm in public (§ 25850, subds. (a), (c)(3)) (count 2), and street terrorism (§ 186.22, subd. (a)) (count 3). On appeal, Mialma challenges the sufficiency of the evidence relating to counts 2 and 3, and jury instructions relating to count 3, arguing the conviction must be reversed. We agree there was insufficient evidence Mialma committed the attempted murder with another gang member, a necessary element to support count 3, street terrorism. We also agree count 2 must be reduced to a misdemeanor because it is reasonably probable the jury found Mialma guilty of the enhanced felony crime on an invalid unsupported theory, i.e., the jury relied on a nonpredicate offense in deciding whether Mialma's gang engaged in a pattern of criminal activity.
All further statutory references are to the Penal Code, unless otherwise indicated.
FACTS
I. The Attempted Murder
On June 30, 2016, around midnight, C.E. (Witness) was sitting in her ground floor apartment located on Birch Street in Santa Ana. Witness stood and looked out her bedroom window after hearing people shouting in a nearby alley. When she looked outside, Witness recognized "Brian," a young Latino male she knew from the neighborhood. She lived in the same apartment complex as him. He was not in the alley, but rather running towards the nearby intersection of Chestnut and Birch Streets. She recalled Brian was wearing a grey sweatshirt and a baseball cap.
Witness saw a second young Latino male (second male) chasing Brian, approximately 13 feet behind him. She also saw a third Latino male (third male) running behind the second male. She did not recognize the other two men.
Witness heard Brian yell the word "walnut" three times. She recalled he sounded "desperate." After Brian yelled "walnut," Witness saw the second man extend out his arm in front of him and he was holding a gun. Witness heard four gunshots in rapid succession. Brian and the second male continued running in the same direction. She saw Brian cross the street and run to the corner of Birch and Chestnut where he dropped a red brick.
The second male also crossed the street and stopped in front of Witness's window. She watched him look from side to side for "some seconds." Witness "stooped down" to avoid being seen and then went to the bathroom to call the police. She did not see what happened next, or where the men went. A police dispatcher announced the shooting to officers on duty at 12:06 a.m.
Officer Nelson Menendez later spoke with Witness because he thought the shooting might be related to a traffic stop police made that same evening, where one of the occupants fled from the vehicle and attempted to hide a gun. Menendez searched the area near Witness's home and discovered an aluminum baseball bat and a red brick. He did not find any bullet shell casings or bullet-related damage to any nearby vehicles, windows, walls, or buildings.
Menendez interviewed Witness, who described what she saw that night. She said the second male had a short tapered hairstyle, a light skin tone, and a mustache. Witness reported the second male wore dark colored clothing, including a dark colored shirt with "white lettering, white type of design . . . [but s]he wasn't too sure what it . . . read or what it said." Witness also said she could not describe the features or clothing of the third male because it was too dark. She noted only that he was a Latino male wearing dark clothing.
Menendez took Witness to the scene of a traffic stop, approximately a quarter of a mile away, to determine if she could identify any of the vehicle's occupants as the shooter. The officers illuminated each of the men with a police spotlight. The men were asked to turn in four directions. Witness could not identify any of the men as the shooter. No one attempted to contact Brian.
Later at trial, Witness indicated she would recognize people from that night if they were in the courtroom. She testified she did not recognize anyone in the courtroom. She described the second male as Latino having a light skin tone and "no hair" (on his head). She could not remember what she reported earlier to Menendez about the second male's hair, and she could not recall if she said the second male had a mustache. She testified the second male was wearing a black long sleeved shirt with a black design that "shined a bit." She elaborated the shiny part of the shirt looked like plastic. Witness did not recall telling the officer the shirt had white lettering.
II. The Traffic Stop
Approximately 20 minutes after Witness called the police about the shooting, officers Dorin Buchanan and Sonny Lim saw the driver of a Nissan Altima violate several traffic laws. Buchanan turned on his patrol car lights, and when the driver of the Altima would not stop, he turned on a siren. Lim was in a different patrol car following Buchanan.
The driver of the Altima continued for approximately one mile, making several turns before parking in a stall. The officers saw the driver's side rear passenger door open and a male, wearing a white polo shirt, run away from the car. The other occupants followed Lim's instructions to exit the vehicle and lay on the ground.
Erick Mendoza (the driver) and a female passenger, Yenny Chavez, had been sitting in the front seat of the Altima. Mialma and Josue Nicasio were sitting in the back seat. Buchanan testified Mialma was wearing a long sleeved hooded sweatshirt and a shirt with white writing on it.
Officers eventually detained the fleeing passenger, Gerardo Morales. On his escape route, officers found a revolver, containing only two cartridges. The gun was set in a ready to fire position.
While searching the vehicle, officers discovered four bullet casings on the right rear floorboard. They did not find a weapon. They noticed a dent in the bodywork of the vehicle's left rear quarter panel and the damage was covered with a "red ceramic clay-like material." A forensic scientist confirmed the casings found in the vehicle had been fired from Morales's discarded revolver. The officers were unable to recover fingerprints from the cartridges or the revolver. The gun required manual removal of the casings. Biological swabs of the evidence did not uncover any helpful DNA evidence.
III. Gang Evidence
A gang expert, Detective Britain Speakman, testified about the Bishop Street gang. He noted the gang claimed as its territory a few blocks of Bishop Street in Santa Ana. Bishop Street gang had approximately 20 members, with only 10 active members. The gang's primary activities included "firearms crimes, narcotic sales crimes, and stolen vehicle crimes." Symbols associated with the gang were the words "Bishop Street," the letter "B," the letters "BSP," and the color burgundy. Its primary rivals were the Walnut Street gang and the Brook Street gang, both having territories that bordered with the Bishop Street gang. These gangs had a history of fighting over territory.
As part of his investigation, Speakman reviewed Mialma's two separate Street Terrorism Enforcement and Prevention (STEP) notifications and their contents (dated June 9, 2016, and October 2, 2016). He also examined police reports involving crimes committed by other Bishop Street gang members, as well as the evidence presented in this case.
Speakman opined Mialma, Mendoza, and Morales were members of the Bishop Street gang. The shooting incident occurred in the Walnut Street gang's territory. Speakman discussed his experience with, and knowledge of, gang culture. He explained gang members are expected to back up other members by assisting in crimes or acting as a lookout. A person who does not provide this level of support will be subject to "violent consequences." He added guns play an important role when the gang wishes to commit crimes against rivals. The members will share one "gang gun" that belongs to the entire gang. When armed, "[i]t is a sign of respect to let your fellow gang members know if you are armed with a gun[.]" Speakman defined a hit-up as meaning "a gang goes into . . . rival territory, for example, driving down the street in a car" and demand people say what gang they are from. Gang members will frequently "hit-up" rival territory, meaning that they search for rival gang members to terrorize. During a hit-up, the gang is looking for rivals or people "to terrorize."
When presented with a hypothetical situation based on the specific facts of the instant shooting offense and nearby traffic stop, Speakman opined Mialma's conduct benefitted a criminal street gang. "These acts would benefit a criminal street gang by, one, showing that the members of [Bishop Street gang] were putting in work, were actively going out and looking to benefit and promote the gang. [¶] The mere fact that they were in a vehicle. At least three Bishop Street gang members can be a sign of force. Driving around the City of Santa Ana can intimidate other gang members."
Speakman added that the mere fact several Bishop Street gang members possessed a gun and "they were out driving around Santa Ana would elevate their status." He opined, "The fact that there was a shooting reported and someone yelling '[w]alnut' and just a short time thereafter a car stop that was less than a mile away was conducted to where Bishop Street was found with a gun" supports the conclusion the acts benefitted a criminal street gang. Speakman stated it was reasonable for any police officer, after finding four spent shell casings in a car, to "conduct a record check on what are some prior calls that had happened" to determine if there was "a shots fired call just nearby." After learning there was a call indicating four shots were fired, Speakman stated a police officer, such as himself, would "start to put two and two together, and I believe that Bishop Street was in Walnut [gang territory] and they fired four shots potentially at a victim."
Several other police officers testified about their contacts with Bishop Street gang members. Officer Nicholas Lopez worked as a detective in the gang suppression unit for two years. Lopez recalled that in May 2016 he spoke with Mendoza and knew his gang moniker was "Rider." Mendoza was a passenger in a vehicle driven by Bishop Street gang member, Jose Duran. They were involved in a high speed chase, and after crashing, the police took Mendoza into custody. At the time, Mendoza possessed a burgundy bandana. Several months later, in July 2016, Lopez had contact with Mendoza who was sitting in a car parked near walls marked with Bishop Street graffiti. Mendoza was wearing a hat with the letter "B" on it and his moniker "Rider" was painted on the wall nearby. Lopez also saw Morales and Nicasio standing near the graffiti.
Officer Camillo Kim detained Mialma and several others approximately four months before the incident described in this case. Kim was investigating a trespassing call and saw eight males near some graffiti and two cans of spray paint. The police detained four men and cited them for trespassing, but the other four successfully fled the scene. Kim testified she was familiar with Bishop Street gang graffiti, but the graffiti on the day of that arrest was illegible and it was unclear if it belonged to the Bishop Street gang. Kim interviewed Mialma, who claimed he did not live in the area and he was "just there to hang out with his homeys."
Several months after the charged crimes in this case, in October 2016, Officer David Guzman served Mialma with a STEP notification. Guzman testified Mialma said he used the moniker, "Stonic." Mialma admitted he had been a member of the Bishop Street gang for approximately 10 years and was willing to defend the gang against rivals such as the Brook Street, West Myrtle, and Walnut Street gangs.
Several weeks later, Guzman saw Mendoza commit several traffic violations while driving a Nissan Altima. Mendoza initially refused to stop the vehicle. When he eventually stopped, Mendoza fled on foot and disposed of a firearm during his escape. Guzman also had contact with Morales after the charged crimes in this case. Guzman investigated Morales regarding an assault with a deadly weapon. He learned Morales's gang moniker was "Borego."
IV. The Trial
A jury determined Mialma was guilty of the three charged counts and found true all the additional allegations. The court sentenced Mialma to a total prison term of seven years to life. It sentenced Mialma to seven years to life on count 1 (attempted murder) and imposed but stayed the middle term on counts 2 and 3 pursuant to section 654. The court struck the gang and firearm enhancements in the interests of justice pursuant to section 1385.
DISCUSSION
I. Count 3, Street Terrorism Conviction
Mialma asserts his conviction for street terrorism must be reversed because there was insufficient evidence of a required element of the crime, i.e., that he assisted another gang member's felonious conduct. We agree. A. Legal Principles
"'"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses 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. [Citations.]" [Citations.] All conflicts in the evidence and questions of credibility are resolved in favor of the verdict, drawing every reasonable inference the jury could draw from the evidence. [Citation.] Reversal on this ground is unwarranted unless "'upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" [Citation.] This standard applies whether direct or circumstantial evidence is involved. [Citation.]' [Citation.]" (People v. Lara (2017) 9 Cal.App.5th 296, 314 (Lara).)
"The California Street Terrorism Enforcement and Prevention Act (STEP Act; § 186.20 et seq.) was enacted in 1988 'to seek the eradication of criminal activity by street gangs.' (§ 186.21.) The STEP Act creates both a substantive offense for active participation in any criminal street gang (§ 186.22, subd. (a)) and an enhancement to be imposed where any person is convicted of a felony committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b))." (Lara, supra, 9 Cal.App.5th at p. 326.)
"The elements of the substantive offense are (1) 'active participation in a criminal street gang, in the sense of participation that is more than nominal or passive,' (2) 'knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity,' and (3) 'the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang.' [Citation.] The elements of the gang enhancement are (1) commission of a felony 'for the benefit of, at the direction of, or in association with any criminal street gang,' and (2) with 'the specific intent to promote, further, or assist in any criminal conduct by gang members.' [Citation.]" (Lara, supra, 9 Cal.App.5th at p. 326.)
"'To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group's primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group's members must engage in, or have engaged in, a pattern of criminal gang activity. [Citations.]' [Citation.] 'A "pattern of criminal gang activity" is defined as gang members' individual or collective "commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more" enumerated "predicate offenses" during a statutorily defined time period. [Citations.] The predicate offenses must have been committed on separate occasions, or by two or more persons. [Citations.]' [Citation.]" (Lara, supra, 9 Cal.App.5th at pp. 326-327.) B. Analysis
This case concerns the third element of section 186.22, subdivision (a). "Mere active and knowing participation in a criminal street gang is not a crime." (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130-1131 (lead opn. of Corrigan, J.) (Rodriguez).) Mialma can only be convicted of street terrorism if there is evidence he willfully committed an act that "promotes, furthers, or assists in any felonious criminal conduct by members of that gang." (§ 186.22, subd. (a).)
Our Supreme Court has clarified the crime of active gang participation is not committed by a gang member who commits a felony alone. (Rodriguez, supra, 55 Cal.4th at p. 1128 (lead opn of Corrigan, J.).) The court explained, "Section 186.22[, subdivision](a) speaks of 'criminal conduct by members of that gang.' (Italics added.) '[M]embers' is a plural noun. The words 'promotes, furthers, or assists' are the verbs describing the defendant's acts, which must be performed willfully. The phrase 'any felonious criminal conduct' is the direct object of these verbs. The prepositional phrase 'by members of that gang' indicates who performs the felonious criminal conduct. Therefore, to satisfy the third element, a defendant must willfully advance, encourage, contribute to, or help members of his gang commit felonious criminal conduct. The plain meaning of section 186.22[, subdivision](a) requires that felonious criminal conduct be committed by at least two gang members, one of whom can include the defendant if he is a gang member. [Citation.]" (Id. at p. 1132.)
Consequently, to satisfy the third element, a defendant must "willfully advance, encourage, contribute to, or help" at least one other member of his gang commit felonious criminal conduct. (Rodriguez, supra, 55 Cal.4th at p. 1132 (lead opn. of Corrigan, J.).) Because section 186.22, subdivision (a) punishes "any" felonious conduct committed by two or more gang members, the felonious criminal conduct underlying active gang participation does not have to be gang-related, or committed for the benefit of a gang. (People v. Albillar (2010) 51 Cal.4th 47, 55.) "The plain language of the statute thus targets felonious criminal conduct, not felonious gang-related conduct." (Ibid.)
"One may promote, further, or assist in the felonious conduct by at least two gang members by either (1) directly perpetrating the felony with gang members or (2) aiding and abetting gang members in the commission of the felony." (People v. Johnson (2014) 229 Cal.App.4th 910, 920-921.) Simply stated, the statute punishes "active participants for commission of [felonious] criminal acts done collectively with gang members." (Rodriguez, supra, 55 Cal.4th at p. 1139 (lead opn. of Corrigan, J.).)
Mialma asserts there was no evidence he committed attempted murder with another member of his gang. We agree. Witness said she saw a single gunman chase Brian and shoot four times. She saw a third male dressed in dark clothing, but because it was dark she could not provide any other description of him. She did not describe his actions, other than that he was some distance behind the "second male" who was holding the gun. She clarified the third male was not holding a gun and she lost sight of him after Brian and the second male crossed the road.
This evidence is not sufficient to show the third male belonged to Mialma's gang. He could have been running to assist either Brian or the gunman. Witness could not identify the men present at the traffic stop later that night or in the courtroom. We conclude there was very slim circumstantial evidence placing Mialma at the scene of the shooting, and absolutely no evidence placing a second Bishop Street gang member with him. There is nothing to suggest the third male was present on the street that night to aid and abet a felony.
The Attorney General asserts events following the shooting prove the third male was a Bishop Street gang member. The Attorney General argues that because Mialma was sitting in a car with three other Bishop Street gang members 10 minutes after the shooting, it is reasonable to infer the third male was one of these gang members. Is this inference reasonable? Temporal proximity alone is insufficient to raise this inference. In addition, the record established two, not three Bishop Street gang members were riding in the car. The gang experts opined Mendoza and Morales were members of the Bishop Street gang. Although one officer noted the third male, Nicasio, was present during a gang graffiti incident, no expert rendered an opinion about Nicasio's gang status. More importantly, Witness was unable to describe the third male because it was too dark and she lost sight of him. The Attorney General's argument might be more convincing if Witness heard the third male shout a word of encouragement; or saw the third male join the shooter under the bedroom window. Evidence that an unidentified Latino male was simply running in the same vicinity of the shooting was insufficient to prove he had any connection with the crime or the Bishop Street gang.
We are also unpersuaded by the Attorney General's assertion we can reasonably infer Mialma and the third male were in the same gang and collectively committed a crime simply because Brian dropped a red brick, and the gang's vehicle appeared to be damaged by a red brick. We find no reasonable correlation between Brian's brick and the third male. We have no reason to assume Brian was running with the same brick that damaged the vehicle earlier that night. It would be simply speculation to conclude the vehicle's damage had anything to do with the shooting incident or the third male. Finally, we were not persuaded by the Attorney General's argument the gang expert's testimony, generally defining gang guns and hit-ups, somehow established the mystery third male was a not only a Bishop Street gang member, but also he assisted Mialma in the attempted murder. The gang expert's testimony did not establish any such specific connection. The conviction for count 3 must be reversed. III. Count 2, Active Gang Member Carrying Loaded Firearm in Public
Based on this ruling, we need not address Mialma's alternative argument the conviction must be reversed because the trial court did not properly instruct the jury on the elements of aiding and abetting.
The crime of street terrorism (§ 186.22, subd. (a) (count 3)), requires evidence of a pattern of criminal gang activity. Similarly, section 25850, subdivision (c)(3), charged as count 2 in this case, punishes carrying a loaded firearm in public as a misdemeanor unless the prosecutor proves defendant "is an active participant in a criminal street gang as defined in subdivision (a) of section 186.22 . . . ." An active gang member carrying a loaded firearm in public is punishable as a felony. (§ 25850, subd. (c)(3).)
Mialma maintains his convictions for the counts 2 and 3 must be reversed because the prosecution presented an invalid legal theory of the Bishop Street gang's pattern of criminal activity. Specifically, he claims the prosecution used a predicate conviction that was not on the list of crimes enumerated under section 186.22, subdivision (e), and the trial court failed to provide the jury with instructions describing the required enumerated crimes. The Attorney General concedes the prosecutor used an erroneous predicate offense and the court gave an ambiguous instruction. He argues any error was harmless beyond a reasonable doubt. Because we have already reversed the street terrorism conviction (count 3) we need only address Mialma's arguments concerning count 2.
As mentioned earlier, to establish the Bishop Street gang is a criminal street gang under section 186.22, the prosecution must prove the group's members "engage in, or have engaged in, a pattern of criminal gang activity." (People v. Duran (2002) 97 Cal.App.4th 1448, 1457.) "A 'pattern of criminal gang activity' is defined as gang members' individual or collective 'commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more' enumerated 'predicate offenses' during a statutorily defined time period. [Citations.] The predicate offenses must have been committed on separate occasions, or by two or more persons. [Citations.] The charged crime may serve as a predicate offense . . . ." (Ibid.)
During closing argument, the prosecutor stated the required "pattern of criminal gang activity is proven by People's [exhibit Nos.] 27 and 28." The prosecutor repeated the required "elements are met through these documents."
Exhibit No. 27 contained documentation of Bishop Street gang member Lauro Navarez's conviction for unlawful taking of a vehicle in violation of Vehicle Code section 10851. This qualified as a predicate offense under section 186.22, subdivision (e).
Exhibit No. 28 contained documents regarding Bishop Street gang member Jesus Lopez's conviction for possessing a short-barreled shotgun or rifle. This crime is not listed in section 186.22, subdivision (e).
The Attorney General asserts any error in relying on exhibit No. 28 was harmless because the charged offense of attempted murder, a crime listed in section 186.22, subdivision (e), can be used to establish a gang's pattern of activity. He notes the jury found Mialma guilty of first degree attempted murder, which is a predicate offense used to prove a pattern of criminal activity.
Mialma disagrees, arguing the error requires reversal because the court failed to provide the jury with instructions describing the enumerated crimes. He explains the jury received "a legally invalid theory that the Lopez offense qualified as a predicate." He acknowledges the charged attempted murder could have been used as one of the predicate offenses, but the record does not support the conclusion the jury relied on the correct two predicate offenses (attempted murder and Navarez's vehicle code offense). If the jury relied on attempted murder and Lopez's offense, the jury's true finding on the enhancement must be reversed. We agree.
The jury had two theories for finding true the elements of the enhancement, one was valid and the other invalid. As explained earlier, the expert witness testified exhibit Nos. 27 and 28 was the basis for his opinion the Bishop Street gang was "a criminal street gang as legally defined." As noted, the exhibit No. 28 is not a valid grounds for the enhancement. The jury would have to disregard this testimony.
Moreover, the prosecutor relied on this incorrect legal theory both in questioning the expert and in his closing argument. When questioning the witness, the prosecutor indicated exhibit Nos. 27 and 28 satisfied the legal definition for criminal street gang. He repeated this theory during closing argument. He stated the following: "The instructions are rather detailed, and embedded in the instruction . . . you need to find that Bishop Street [gang] is actually a criminal street gang. It has to meet the legal elements of a criminal street gang." After discussing some of the preliminary requirements not relevant to this appeal, he turned his attention to the evidence supporting the element of "pattern of criminal gang activity." He asserted the following: "And the pattern of criminal gang activity is proven by People's [exhibit Nos.] 27 and 28. And these are the exhibits that I referenced with the expert. And you probably were asking yourself when I asked . . . Speakman about these cases who is . . . Navarez and who is . . . Lopez? You were probably wondering who the heck are these people and what do they have to do with this case. [¶] Well, they were marked as exhibits and the detective was questioned because I need to prove all the elements of the offense, and one of the elements is that Bishop Street [gang] engaged in a pattern of criminal gang activity. And when you see the elements in the instruction, this meets the definition of that." The prosecutor reviewed the documents contained in the two exhibits for the jury and concluded "all of [the enhancement's] elements are met through these documents."
The jury had no reason to ignore this argument or the expert's testimony in favor of using attempted murder as the second predicate offense because the jury instruction suggested Lopez's firearm offense would qualify. The instruction ambiguously and broadly defined "pattern of criminal gang activity" as meaning "at least one of the following crimes: attempted murder, active participant in a criminal street gang, carrying a loaded firearm, other firearm crimes, narcotics crimes, and/or vehicle thefts." The reference to "other firearm crimes" would include Lopez's conviction for possessing a short-barreled shotgun/rifle (exhibit No. 28). However, we also recognize the instruction could also support a valid conviction based on attempted murder and Navarez's conviction for unlawful taking of a vehicle (exhibit No. 27).
In such situations, when there is a legally inadequate theory of guilt, the Attorney General asserts we must apply the harmless-error standard of review established in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). Mialma asserts prejudice must be analyzed by the test set forth in People v. Guiton (1993) 4 Cal.4th 1116, 1130 (Guiton). The Attorney General is correct. (See People v. Aledamat (2019) 8 Cal.5th 1, 7-9 (Aledamat).).
In Guiton, our Supreme Court recognized there were two distinct categories of incorrect legal theories having different standards of review. In "a 'factually inadequate theory'" case, the theory of guilt is incorrect because the evidence does not support it. (Id. at p. 1128.) A lower standard, the traditional Watson test, should be applied in those cases. (Id. at p. 1130.) "If the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground." (Id. at p. 1129.)
People v. Watson (1956) 46 Cal.2d 818, 836 --------
In contrast, under a "'legally inadequate theory'" case, the theory of guilt is incorrect because it is contrary to law. (Guiton, supra, 4 Cal.4th at p. 1128.) An example "is a case where the inadequate theory 'fails to come within the statutory definition of the crime.' [Citation.]" (Ibid.) This type of error "appear[s] to be of federal constitutional dimension." (Id. at p. 1129.) Because the error in Guiton was factual, the Supreme Court did not decide the standard of review applicable in cases involving legal error. It noted, "There may be additional ways by which a court can determine that [legal] error . . . [was] harmless. We leave the question to future cases." (Id. at p. 1131.) Recently in Aledamat, supra, 8 Cal.5th at page 9 it answered this question. The higher Chapman standard of review when the theory of guilt is legally inadequate. (Aledamat, supra, 8 Cal.5th at p.9.)
In any event, we have reviewed the entire record and find the combined effect of the expert's testimony, prosecutor's statements, and ambiguous jury instruction make it highly likely the verdict rested on the invalid theory the two predicate offenses were Lopez's and Navarez's convictions (exhibit Nos. 27 and 28). We conclude the true finding for a felony violation of section 25850 must be reversed. It cannot be said beyond a reasonable doubt the error did not contribute to the jury's verdict.
We reject the Attorney General's assertion the error was harmless based on his reading of People v. Fiu (2008) 165 Cal.App.4th 360, 387-388. In that case, the trial court took judicial notice of and instructed the jury regarding three predicate offenses, one of which, possession of an assault weapon, was not listed in section 186.22, subdivision (e). (Ibid.) The court in Fiu concluded that although the trial court incorrectly instructed the jury, the error was harmless, because the gang enhancement allegation "requires proof of only two enumerated offenses in order to prove a pattern of criminal gang activity" and "the remaining two offenses that the trial court took judicial notice of, and instructed the jury regarding, provided the two necessary predicate offenses." (Id. at p. 388.) In a footnote, the court also noted the two charged offenses qualified as predicate offenses, although "the trial court did not so instruct the jury." (Id. at p. 387, fn. 33.) Because the jury convicted defendant of committing two predicate charged crimes with other gang members, there was a valid basis for the jury's true finding the gang was a criminal street gang as legally defined by section 186.22. Here, the charged offenses could not serve as both predicate offenses, and therefore, we cannot hold the instructional error was harmless beyond a reasonable doubt. We find nothing in the record demonstrating the jury's verdict rested only on legally valid predicates.
DISPOSITION
We reverse Mialma's conviction under count 3 and vacate his sentence as to count 3. Count 2 is reduced to a misdemeanor and the related special gang allegation is stricken. The matter is remanded for resentencing on count 2. In all other respects, the judgment is affirmed.
O'LEARY, P. J. WE CONCUR: IKOLA, J. GOETHALS, J.