Error and/or relief
The jury received a legally erroneous instruction on the elements of the gang conspiracy offense.
First Holding:
The trial court instructed the jury on count 10 as follows: The defendant is charged with participating in a criminal street gang conspiracy, in violation of section 182.5. It is charged that the felony committed was murder, in violation of section 187(a) To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant was an active participant in a criminal street gang; 2. The defendant had knowledge that its members engage in or have engaged in a pattern of criminal gang activity; 3. The crime of murder, in violation of section 187 was committed by the gang in which the defendant belongs; and 4. The defendant intended to promote, further, assist, or benefit in the commission of the crime by other gang members.
The court failed to advise the jury that it must find defendant in fact promoted, furthered, assisted, or benefitted in the commission of the crime and did not just intend to do so.
Authority:
People v. Abbate (2020) 58 Cal.App.5th 100, 110
Second Holding:
While there was sufficient evidence for a properly instructed jury to find the defendant guilty on count 10, it was far from overwhelming. The jury found the defendant not guilty on several of the counts charged against him. And the court’s instructional error was exacerbated by the prosecution’s argument that “the fourth element is that they either intended to further, to promote, or further assist in the commission of crimes of other gang members.
The reviewing court must consider the arguments of counsel in assessing the probable impact of the instruction on the jury. On this record, we cannot conclude that the instructional error was harmless. We will therefore vacate the conviction on count 10 and remand the matter to the trial court to allow the prosecution an opportunity to retry count 10.
Authority:
People v. Young (2005) 34 Cal.4th 1149, 1202
People v. Cooper (2023) 14 Cal.5th 735, 746–747
People v. E.H. (2022) 75 Cal.App.5th 467, 480
People v. Lopez (2021) 73 Cal.App.5th 327, 346
Third Holding:
A trial court must instruct on all lesser included offenses supported by substantial evidence, including voluntary manslaughter.
Authority:
People v. Duff (2014) 58 Cal.4th 527, 561