Error and/or relief
Insufficient evidence supported the jury’s gang predicate offense findings, and we therefore reverse the true findings on the gang and gang firearm enhancements, as well as the gang special circumstance. We reject the defendant’s other arguments.
First Holding:
The role of the reviewing court in evaluating sufficiency of the evidence claims is a limited one. We review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two 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. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.
When there are two possible grounds for the jury’s verdict, one unreasonable and the other reasonable, we will assume, absent a contrary indication in the record, that the jury based its verdict on the reasonable ground.
Authority:
People v. Ghobrial (2018) 5 Cal.5th 250, 277–278
Second Holding:
To prove the gang allegations true beyond a reasonable doubt, the prosecution had to show (1) the defendant committed the murder for the benefit of, at the direction of, or in association with a criminal street gang, and (2) with the specific intent to promote, further, or assist in criminal conduct by gang members.
A criminal street gang is defined as (1) an ongoing, organized association or group of three or more persons, whether formal or informal, (2) having as one of its primary activities the commission of one or more of the enumerated criminal acts, (3) having a common name or common identifying sign or symbol, and (4) whose members collectively engage in, or have engaged in, a pattern of criminal gang activity.
A pattern of criminal gang activity means (1) the commission of or conviction of, two or more enumerated criminal acts, (2) provided at least one of these offenses occurred after September 26, 1988, and the last of those offenses occurred within three years of the prior offense and within three years of the date the current offense is alleged to have been committed, (3) the offenses were committed on separate occasions by two or more members, (4) the offenses commonly benefited a criminal street gang, and (5) the common benefit from the offenses is more than reputational.
The acts making up the pattern of gang activity are commonly referred to as predicate offenses.
Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential[,] current or previous witness or informant. The charged offenses cannot be used to satisfy the gang allegation requirements.
Authority:
PEN 186.22(b)(1), (e)(1), (e)(2), (f)
People v. Hin (2025) 17 Cal.5th 401, 460
People v. Shively (2025) 111 Cal.App.5th 460, 465-466
(Gary note:
(Gary note: The balance of this aspect of the opinion deals with the specifics of the evidence and inferences to be drawn, and the appellate court determined that the evidence in support of two of the three predicate offenses alleged by the prosecution were not supported by sufficient evidence. The court then reversed the jury’s true finding on the special circumstance gang allegation under section 190.2(a)(22) and the true findings on the gang enhancements charged under sections 186.22 (b)(1)(C) and 12022.53(d) and (e). It remanded the matter to the trial court for resentencing.
(The defendant unsuccessfully raised many other issues. I have included several as holdings (Third through Eighth) because they do state important legal principles even though unrelated to the sufficiency of evidence successful argument.)
Third Holding:
Advocates are given significant leeway in discussing the legal and factual merits of a case during argument. Prosecutors have wide latitude to present vigorous arguments so long as they are a fair comment on the evidence, including reasonable inferences and deductions from it. When attacking the prosecutor’s remarks to the jury, the defendant must show that, in the context of the whole argument and the instructions, there was a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. In conducting this inquiry, we do not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.
A prosecutor’s conduct violates a defendant’s constitutional rights when the behavior comprises a pattern of conduct so egregious that it infects ‘ “the trial with unfairness as to make the resulting conviction a denial of due process. Even if the behavior does not reach that level of egregiousness, it may still violate California law if it involves the use of deceptive or reprehensible methods when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. he focus of the inquiry is on the effect of the prosecutor’s action on the defendant, not on the intent or bad faith of the prosecutor.
Authority:
People v. Centeno (2014) 60 Cal.4th 659, 666
People v. Leon (2015) 61 Cal.4th 569, 606
People v. Sanchez (2014) 228 Cal.App.4th 1517, 1528
Fourth Holding:
A claim of prosecutorial misconduct is ordinarily preserved for appeal only if the defendant made a timely and specific objection at trial and requested an admonition. The primary purpose of the requirement that a defendant object at trial to argument constituting prosecutorial misconduct is to give the trial court an opportunity, through admonition of the jury, to correct any error and mitigate any prejudice. Consistent with that purpose, a court will excuse a defendant’s failure to object only if an objection would have been futile, or if an admonition would not have mitigated the harm caused by the misconduct.
Authority:
People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 853
Fifth Holding:
The trial court has a sua sponte duty to instruct the jury on the essential elements of the charged offense. In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury’s understanding of the case. However, the trial court should only give instructions supported by substantial evidence.
Evidence is substantial’ for this purpose if it is sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. At the same time, instructions not supported by substantial evidence should not be given. It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case.
Authority:
People v. Merritt (2017) 2 Cal.5th 819, 824
People v. Townsel (2016) 63 Cal.4th 25, 58
People v. Ross (2007) 155 Cal.App.4th 1033, 1049-1950
Sixth Holding:
In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury’s understanding of the case. A claim of instructional error is reviewed de novo. We independently review the wording of a jury instruction to assess whether the instruction accurately states the law. The test is whether there is a reasonable likelihood that the jury understood the charge in a manner that violated the defendant’s rights.
Further, the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. Moreover, any theoretical possibility of confusion may be diminished by the parties’ closing arguments. Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case.
Authority:
People v. Martinez (2010) 47 Cal.4th 911, 953
People v. Cole (2004) 33 Cal.4th 1158, 1210
People v. Posey (2004) 32 Cal.4th 193, 218
People v. Davison (1995) 32 Cal.App.4th 206, 212
People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220, overruled on another ground in People v. Rangel (2016) 62 Cal.4th 1192
Seventh Holding:
The Watson standard of prejudice (i.e., the error is reversible when there is a reasonable probability defendant would have obtained a more favorable result in the absence of the error) applies to an instruction that misdirects the jury, including incorrect, ambiguous, conflicting, or wrongly omitted instructions. In contrast, the Chapman standard of review (i.e., error is harmless only when it appears beyond a reasonable doubt that the error did not contribute to the verdict obtained) applies when an instruction improperly describes or omits an element of the offense.
Authority:
People v. Campbell (2020) 51 Cal.App.5th 463, 493
People v. Watson (1956) 46 Cal.2d 818, 836
Chapman v. California (1967) 386 U.S. 18
Eighth Holding:
When a trial court orally misstates instructions that are legally correct in written form, the jury is presumed to be guided by the written instructions based upon copies of the instructions received for deliberations.
Authority:
People v. Osband (1996) 13 Cal.4th 622, 687
People v. Mills (2010) 48 Cal.4th 158, 200–201 [written instructions control over verbal instructions]
People v. Wilson (2008) 44 Cal.4th 758, 803 [same]
People v. Mills (2012) 55 Cal.4th 663, 680 [we view the record as a whole, and consider the instructions in context]