Error and/or relief
There are two defendants, both convicted of murder and other matters. We reverse all counts of the conviction of Defendant A because of instructional error. It is therefore not necessary for us to consider the other errors urged by Defendant A. As to Defendant B, we reverse the conviction on the firearm offenses because of instructional error, and agree that the jury’s true findings on gang enhancements and related gang-related firearm enhancements must be vacatedand remanded because of changes in the law of gang criminal activity.
[GARY NOTE: The opinion is 70 pages long and goes into extensive discussion of the elements of murder. The reversals were based on the absence of proper jury instructions. I have chosen to summarize only a few of the pronouncements in the opinion rather than present a treatise on the elements of murder. I will, however, send the opinion to attorneys on request.]First Holding:
Due to the trial court’s failure to instruct the jury on the meanings of “willfully,” “deliberately,” and “with premeditation,” or with the instructions describing aider and abettor liability for murder, Defendant A’s conviction for first degree murder requires reversal.
To be guilty of first degree murder as an aider and abettor, the jury must be instructed that a person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.
Authority:
People v. Beeman (1984) 35 Cal.3d 547, 561
Second Holding:
We evaluate the failure to instruct the jury on an element of an offense for prejudice under Chapman. Under this standard, we must reverse the conviction unless after examining the entire cause, including the evidence, and considering all relevant circumstances, it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.
Authority:
Chapman v. California (1967) 386 U.S. 18, 24
People v. Beck and Cruz (2019) 8 Cal.5th 548, 642
People v. Swain (1996) 12 Cal.4th 593, 607
Third Holding:
We review a claim of instructional error de novo. Review of the adequacy of instructions is based on whether the trial court fully and fairly instructed on the applicable law. Generally, the trial court is required to instruct the jury on the general principles of law that are closely and openly connected with the evidence and that are necessary to the jury’s understanding of the case. It also has a duty to refrain from giving incorrect instructions or instructions on principles of law that are irrelevant and that would have the effect of confusing the jury or relieving it from making findings on the relevant issues. The trial court’s duty in this regard extends to lesser included offenses that find substantial support in the evidence. In determining the correctness of jury instructions, we consider the entire charge of the court, in light of the trial record.
Authority:
People v. Manriquez (2005) 37 Cal.4th 547, 581, 584
People v. Barber (2020) 55 Cal.App.5th 787, 798-799
People v. Thomas (2023) 14 Cal.5th 327, 388–389
People v. Breverman (1998) 19 Cal.4th 142, 162
People v. Covarrubias (2016) 1 Cal.5th 838, 926
Fourth Holding:
An erroneous failure to instruct on a lesser included offense requires reversal of a conviction if, taking into account the entire record, it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred. In a noncapital case, a failure to instruct sua sponte on a lesser necessarily included offense that is supported by the evidence is state law error that we review for prejudice under Watson. Under Watson, a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error. We also consider the instructions as a whole, the jury’s findings, and the closing arguments of counsel.
Authority:
People v. Breverman (1998) 19 Cal.4th 142, 169, 178
People v. Watson (1956) 46 Cal.2d 818, 836
People v. Ledesma (2006) 39 Cal.4th 641, 716
People v. Watson (1956) 46 Cal.2d 818
People v. Beltran (2013) 56 Cal.4th 935, 955
People v. Larsen (2012) 205 Cal.App.4th 810, 831
Fifth Holding:
We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. When we review a purportedly erroneous instruction, we consider whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution.
Authority:
People v. Ramos (2008) 163 Cal.App.4th 1082, 1088
People v. Richardson (2008) 43 Cal.4th 959, 1028
Sixth Holding:
AB 333 amended section 186.22, by, among other things, modifying the definitions of “pattern of criminal activity” and “criminal street gang,” as well as clarifying what is required to establish that an offense benefits, promotes, furthers, or assists a criminal street gang. Section 186.22 now requires proof of the following additional requirements with respect to predicate offenses: (1) the offenses must have commonly benefited a criminal street gang where the common benefit is more than reputational; (2) the last predicate offense must have occurred within three years of the date of the currently charged offense; (3) the predicate offenses must be committed on separate occasions or by two or more gang members, as opposed to persons; and (4) the charged offense cannot be used as a predicate offense.
To benefit, promote, further, or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational. 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.
Authority:
People v. Perez (2022) 78 Cal.App.5th 192, 206
People v. Lopez (2021) 73 Cal.App.5th 327, 345
Seventh Holding:
Because the changes to the criminal street gang statute in AB 333 are ameliorative,those changes apply retroactively to defendants whose convictions are not yet final.
Authority:
People v. Tran (2022) 13 Cal.5th 1169, 1206–1207