Error and/or relief
The gang conspiracy convictions are unsupported by substantial evidence that defendants committed the target offense charged, i.e., a violation of section 26100(c). We therefore modify the verdicts on count 5 to reflect convictions for gang conspiracy based on a lesser included target felony violation of section 26100(d). Resentencing is required on this count and vacate the sentences.
The sentences on count 2 must be vacated because the alternate penalty provision set forth in section 186.22(b)(4) was neither pled nor proved. Additionally, imposition of both the gang enhancement and firearm enhancement on this count violates the dual use prohibition set forth in section 12022.53(e)(2).
We remand for resentencing.
(Gary note: This was a multiple-defendant case with an extremely long opinion. There were many issues, most of which resulted in a finding of no error, and I have not attempted to list them all.)
First Holding:
The information charged defendants in count 5 with gang conspiracy for promoting, furthering, assisting, or benefitting from felonious criminal conduct, specifically Penal Code section 26100(c). Section 26100(c) is violated by the willful and malicious discharge of a firearm from a motor vehicle at another person other than an occupant of a motor vehicle.
Authority:
PEN 26100(c)
Second Holding:
In this case there was no evidence that a firearm was discharged at anyone other than an occupant of a motor vehicle. Under sections 1181 and 1260, an appellate court that finds that insufficient evidence supports the conviction for a greater offense may, in lieu of granting a new trial, modify the judgment of conviction to reflect a conviction for a lesser included offense.
In a conspiracy case, the defendant may be convicted of conspiring to commit a lesser crime included in the alleged target offense.
Authority:
PEN 1181
PEN 1260
People v. Navarro (2007) 40 Cal.4th 668, 671
People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1706 [the trial court has a sua sponte obligation to instruct on lesser included target offenses if there is evidence from which the jury could find a conspiracy to commit a lesser offense]
Third Holding:
It is well settled that a section 182.5 conspiracy (i.e., conspiracy in connection with participation in a criminal street gang) relates only to the commission of a felony. Thus, a gang conspiracy requires the actual commission of felonious criminal conduct as either an attempt or a completed crime.
A violation of section 26100(d) [discharging a firearm from a motor vehicle] is a wobbler, meaning it is chargeable or, in the discretion of the court, punishable as either a felony or a misdemeanor. An attempted or completed felony violation of section 26100(d) may appropriately serve as the target offense for a gang conspiracy conviction.
In light of the insufficient evidence of a violation under subdivision (c), we will modify the verdicts on count 5 to reflect the gang conspiracy convictions are predicated upon a felonious violation of section 26100(d).
Authority:
PEN 26100(d)
People v. Johnson (2013) 57 Cal.4th 250, 262
People v. Park (2013) 56 Cal.4th 782, 789
Fourth Holding:
In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. However, a judicially created exception to the general rule permitting multiple conviction prohibits multiple convictions based on necessarily included offenses.
When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed.
An offense is necessarily included within another if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, such that all legal elements of the lesser offense are also elements of the greater. In other words, if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.
Authority:
People v. Reed (2006) 38 Cal.4th 1224, 1226-1227
People v. Sanders (2012) 55 Cal.4th 731, 736
People v. Sanchez (2001) 24 Cal.4th 983, 987 [a defendant cannot be convicted of both a greater offense and a necessarily included offense based on the commission of the same act]
People v. Robinson (2016) 63 Cal.4th 200, 207
Fifth Holding:
The elements of the crimes of active participation in a gang (section 186.22) and gang conspiracy (section 182.5) are nearly identical.
However, whereas active participation may be committed by any of the alternative means of promoting, furthering, or assisting in felonious conduct by gang members, gang conspiracy may be committed by any of the alternative means of promoting, furthering, assisting, or benefitting from the felonious conduct of gang members.
Although all the elements of the active participation offense are also included in the gang conspiracy offense, it is possible to commit gang conspiracy without committing the active participation offense if the defendant merely benefits from the felonious criminal conduct of fellow gang members.
Thus, because gang conspiracy may be committed without necessarily committing the offense of active participation in a criminal street gang, active participation is not a necessarily included lesser offense.
Authority:
PEN 186.22
PEN 182.5
People v. Robinson (2016) 63 Cal.4th 200, 207
People v. Hinojos (2025) 111 Cal.App.5th 19, 33–34 [utilizing the same reasoning to hold that section 654 did not bar imposition of the gang enhancement on the defendant’s gang conspiracy convictions]
Sixth Holding:
The court erred in sentencing defendants pursuant to section 186.22(b)(4) because this alternate penalty provision was not alleged in the information. Section 186.22(b)(4) is an alternate penalty provision prescribing indeterminate terms of life imprisonment for those who committed certain enumerated felonies under the same gang-related circumstances described elsewhere in section 186.22. If the elements are present, the sentence will be an indeterminate term of life, with a specified minimum term.
A defendant has a due process right to fair notice of any sentencing allegation that, if proven, will increase the punishment for a crime. As a matter of due process, an alternative punishment provision must be pleaded and proved.
The failure to plead an alternate penalty provision deprives the defendant of fair notice of his or her sentencing exposure by failing to inform him or her that an alternate sentence carrying a higher term will be pursued.
Additionally, a defendant is deprived of adequate notice if punishment is imposed under one provision, and an enhancement was alleged under a different, mutually exclusive provision, even if facts supporting the alternate allegation are contained in the information.
Even if the statute alleged in the information cross-references the statute under which an alternate penalty is pursued, the information fails to inform the defendant that the prosecution will seek to impose the more stringent sentence; therefore, imposition of the higher alternate sentence would violate due process.
Authority:
People v. Lopez (2022) 12 Cal.5th 957, 970
Robert L. v. Superior Court (2003) 30 Cal.4th 894, 899–900, and fn. 6
In re Vaquera (2024) 15 Cal.5th 706, 717, 723, 724 [information alleging One Strike allegation pursuant to sec. 667.61(b)/(e)(4) for an offense against more than one victim was inadequate to provide the defendant notice the prosecution might seek a One Strike sentence pursuant to sec. 667.61(j)(2) for an offense against a child under 14 years of age, even though the facts supporting the allegation were contained in the information].
People v. Sweeney (2016) 4 Cal.App.5th 295, 301 [information alleging gang enhancements under sec. 186.22(b) did not give the defendant adequate notice that an alternate sentence under subd. (d) might apply]
Seventh Holding:
The matter must be remanded for full resentencing.
Authority:
People v. Buycks (2018) 5 Cal.5th 857, 893
People v. Shaw (2020) 56 Cal.App.5th 582, 588–589 [remanding for a full resentencing hearing as to all counts in light of an unauthorized enhancement]
People v. Delgado (2010) 181 Cal.App.4th 839, 855 [It is perfectly proper for this court to remand for a complete resentencing after finding an error with respect to part of a sentence]
People v. Lopez (2022) 12 Cal.5th 957, 975–976 [remanding for resentencing after finding the alternate penalty provision set forth in sec. 186.22(b)(4) to be inapplicable]
Eighth Holding:
In a case in which it is proper to invoke section 186.22(b)(4), the court cannot both invoke that alternative sentencing scheme and impose the firearm enhancement under section 12022.53(e) on a principal who did not personally use the firearm. Only one of these enhancements may be imposed.
Section 186.22(b)(4) permits an indeterminate life sentence for criminal gang activity if certain conditions are present. Section 12022.53(e)(1) extends liability for the firearm use of another to a principal who did not personally use or discharge the weapon, but who violated subdivision (b) of section 186.22.
Section 12022.53(e)(1) creates an exception to the personal use requirement of section 12022.53(b) through (d) in a prosecution where findings have been made pursuant to section 186.22. In a case where section 186.22 has been found to be applicable, in order for section 12022.53 to apply, it is necessary only for a principal, not the accused, in the commission of the underlying felony to personally use the firearm; personal firearm use by the accused is not required under these specific circumstances.
However, as a consequence of this expanded liability under section 12022.53(e), the Legislature has expressly determined in section 12022.53(e)(2) to preclude the imposition of an additional enhancement under section 186.22 in a gang case unless the accused personally used the firearm.
Authority:
PEN 186.22(d)
PEN 12022.53(e)(2)
People v. Salas (2001) 89 Cal.App.4th 1275, 1281–1282
People v. Brookfield (2009) 47 Cal.4th 583, 593, 595-596 [In choosing which of those two provisions to apply, the trial court must, consistent with section 12022.53(j), choose the provision that will result in a greater sentence.]
Ninth Holding:
The availability of increased punishment is a matter of pleading and proof. The information alleged only that a principal personally discharged and used a firearm. Moreover, the prosecution did not request that the jury be instructed regarding personal firearm use or discharge or the firearm enhancement, and the verdict did not call for a jury finding on this point. There was therefore no finding that the defendant personally used or discharged a firearm in the commission of the crime. As a matter of law, the special circumstance finding in a different count applies only to that count and does not provide a finding sufficient to overcome the bar against dual use of the gang finding set forth in section 12022.53(e)(2).
Authority:
PEN 12022.53(j) [For the penalties in this section to apply, the existence of any fact required under subdivision (b), (c), or (d) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact ….]
People v. Masbruch (1996) 13 Cal.4th 1001, 1007 [Whether a defendant used a firearm in the commission of an enumerated sex offense is for the trier of fact to decide.]
