Opinion Bank # O-250 (Re: F 6.50 n20 [Distinction Between Substantive Gang Offense (PC 186.22(a)) And Gang Enhancement (PC 186.22(b))].)
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EXCERPT OF UNPUBLISHED OPINION F026467 & F026555
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
VICTOR VALENCIA et al.,
Defendants and Appellants.
_____________________________/
APPEAL from a judgment of the Superior Court of Tulare County, Patrick J. O’Hara, Judge.
Cara DeVito, under appointment by the Court of Appeal, and David C. Candelaria for Defendants and Appellants.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, J. Robert Jibson and Janine R. Busch, Deputy Attorneys General, for Plaintiff and Respondent.
VI.
THE JURY WAS IMPROPERLY INSTRUCTED
REGARDING THE GANG ENHANCEMENT
Appellants Valencia and Aguilera raise separate issues regarding the gang enhancement. Appellant Aguilera asserts the jury was not properly instructed as to the elements pursuant to CALJIC No. 6.50, Appellant Valencia points out a more serious problem regarding inconsistencies between the gang enhancement charged in the information and the actual offense defined in the jury instructions.
A. Background
As to all counts charged in the information, it was alleged that appellants committed the offenses “for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members,” pursuant to Penal Code section 186.22, subdivision (b)(1).
In the jury instructions, however, the trial court gave the following modified version of CALJIC No. 6.50 which stated the elements of section 186.22, subdivision (a):
“Every person who actively participates in any criminal street gang with knowledge that the members engaged in or have actively engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, is guilty of a violation of Section 186.22 (a), which is a special allegation in this case.”
The instructions correctly defined a “criminal street gang” and the requisite “pattern of criminal gang activity.” The instructions also defined the required elements as follows:
“In order to prove such allegation, each of the following elements must be proved:
” 1. A person actively participated in a criminal street gang,
“2. The members of such gang are engaged in or have engaged in a pattern of criminal gang activity,
“3. That person had knowledge that the gang members engage in or have engaged in a pattern of criminal gang activity, and
“4. That person aided and abetted [a] member[s] of that gang in committing the crimes [of murder and attempted murder].”
The jury was also instructed that to be convicted of being an active participant in a street gang a defendant “must have a relationship with the criminal street gang” which is (1) more than nominal, passive, inactive or purely technical and (2) the person must devote all, or a substantial part of his time and efforts to the criminal street gang.”
Appellants were convicted of count I, second degree murder, and count II, the lesser offense of assault with a firearm. As to both counts, the verdict forms reflect the jury found true the “special allegation of a crime committed in furtherance, assistance or promotion of a criminal street gang pursuant to Penal Code section 186.22(a).”
In appellant Valencia’s probation report, the probation officer noted appellants were charged with the criminal street gang enhancement pursuant to Penal Code section 186.22, subdivision (b), but the verdict forms reflected a conviction for section 186.22, subdivision (a). “A problem arises as Section 186.22 (a) is not a sentence enhancement. This section should be charged as a separate count. Section 186.22 (b) is the proper section which addresses a sentence enhancement under [the STEP Act].” The probation officer also noted both the prosecution and the jury might have intended to impose the section 186.22, subdivision (b) enhancement. “However, it is not this officer’s prerogative to speculate upon the intent of the jury and it must be therefore assumed that the information referred by the Court is correct. Therefore, it appears that the Special Allegation as charged is in error and will not be considered in the recommendation of this report.” The probation report concluded that section 186.22, subdivision (a) should not be considered, and that section 186.22, subdivision (b) provided for a sentencing enhancement of one, two, or three years.
At appellant Valencia’s sentencing hearing, he noted the comments in the probation report regarding the criminal street gang enhancement. Valencia pointed out the information alleged the street gang enhancement, pursuant to section 186.22, subdivision (b), but the jury instructions and verdict forms defined the separate substantive crime of section 186.22, subdivision (a), “a crime that wasn’t pled.” Valencia also noted the subdivision (b) enhancement required an additional specific intent element which was not given to the jury and the actual jury instructions were incorrect as to the enhancement. Subdivision (a) defined a separate crime, while subdivision (b) defined the enhancement, and the jury was improperly instructed.
The prosecutor recalled the instructions initially listed the subdivision (b) elements, but the court adopted Valencia’s request to instead list the subdivision (a) elements. The prosecutor asserted a conviction for subdivision (a) would still be valid “because amendment is certainly possible during the trial according to proof” Valencia’s request to give the subdivision (a) instructions amounted to an amendment, and the jury properly convicted appellant of the offense defined in subdivision (a).
The court disagreed with the prosecutor’s assertions and stated that “there was never anybody who wanted a different substantive crime of [section] 186.22 (a). Mr. Cross nor anybody ever asked for a separate crime of substantive 186.22.” The court was concerned whether the jury was properly instructed as to the elements of the subdivision (b) enhancement.
The prosecutor suggested the instructions properly defined the enhancement, and simply misstated the correct code sections. “I believe the jury was instructed properly. I believe the jury was informed of exactly what they were to find, and I believe that is the basis of their verdict, and I believe what we have here is something along the line of an error and nothing more.” Valencia again argued the required elements for subdivisions (a) and (b) were different, and the jury was not instructed as to the enhancement.
The court imposed the sentences for counts I and II, and imposed a consecutive two-year term for the “enhancement” of section 186.22, “because I believe the elements were properly given to the jury.” The abstract of judgment reflects the court imposed an enhancement” of two years based on section 186.22, subdivision (a).
At appellant Aguilera’s sentencing hearing, his attorney also noted the probation report detected the discrepancies between the section 186.22, subdivision (b) enhancement charged in the information, and the subdivision (a) substantive offense defined in the instructions and verdict forms. Appellant Aguilera asserted the court lacked jurisdiction to unilaterally
change the jury findings from the substantive offense defined by the instructions pursuant to subdivision (a), to the subdivision (b) enhancement charged in the information.
The prosecutor noted they had discussed this problem at appellant Valencia s sentencing hearing, and again characterized the mistake as a scrivener@s error which only misstated the subdivision. The prosecutor asserted the jury was “well aware of what their finding entailed and found that he was a member — not only a member of the criminal street gang, but that this crime was done for the benefit of that particular criminal street gang.” Appellant Aguilera responded the court lacked jurisdiction to impose the subdivision (b) enhancement.
The court found the jury was properly instructed as to the elements of the gang enhancement, the verdict form mistakenly listed subdivision (a), and such a mistake was immaterial. The court imposed two years for the gang enhancement of subdivision (b). However, the abstract of judgment again reflected a term imposed for subdivision (a).
B. Discussion
Appellant Valencia asserts the information charged him with an enhancement pursuant to section 186.22, subdivision (b), but the instructions defined, and the jury found him guilty, of the substantive offense of subdivision (a). Appellant Valencia contends the mistake was not a scrivener’s error, and the term imposed pursuant to section 186.22 must be stricken. Appellant Aguilera argues the jury was not properly
instructed pursuant to CALJIC No. 6.50.
Section 186.22 defines the California Street Terrorism Enforcement and Prevention Act, also known as the STEP Act. The statute defines both a substantive offense and an enhancement arising from criminal conduct committed by criminal street gangs. Section 186.22 subdivision (a) defines the substantive offense of knowingly participating in a criminal street gang. (In re Ramon T (1997) 57 Cal.App.4th 201,206-207; People v. Funes (1994) 23 Cal.App.4th 1506, 1527 fn. 13.) Subdivision (a) states:
“Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in state prison ….”
Section 186.22, subdivision (b) separately defines the enhancement of committing the underlying offense for the benefit of a criminal street gang. (People v. Funes, supra, 23 Cal.App.4th 1506, 1510, 1527, fn. 13.) Subdivision (b)(1)states:
“… [A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of one, two, or three years at the court’s discretion.”
Both subdivisions (a) and (b) share the same statutory definition of a “criminal street gang” whose members engage in a “pattern of criminal gang activity.” (In re Jose T (1991) 230 Cal.App.3d. 1455, 1462; People v. Funes, supra, 23 Cal.App.4th 1506, 1527, fn. 13.) The STEP Act defines “criminal street gang” as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts” enumerated within section 186.22, subdivision (e), “having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd.(f).) In order to establish “a pattern of criminal gang activity,” the prosecution must prove “the commission, attempted commission, or solicitation of two or more of the following [enumerated] offenses, provided at least one of these offenses occurred after the effective date of this chapter [1988] and the last of these offenses occurred within three years after a prior offense, and the offenses are committed on separate occasions, or by two or more persons…. (See Historical and Statutory Notes. 47 West’s Ann. Pen. Code (1997 pocket supp.) § 186.22, subd.(e), pp. 92-93.)
While both the substantive offense and the enhancement share the same definitions of “criminal street gang” and “pattern of criminal gang activity,” there are substantial differences in the rest of the statutorily required elements to prove either subdivision (a) or subdivision (b). In order to secure a conviction of the substantive offense of participating in a criminal street gang pursuant to section 186.22, subdivision (a), the prosecutor must also prove the defendant:
(1) “participated” in that particular gang,
(2) “with knowledge that its members engage in or have engaged in a pattern of criminal gang activity,” and
(3) willfully promoted or assisted the felonious criminal conduct of the gang. (People v. Funes, supra, 23 Cal.App.4th at p. 1527, fn. 13; People v. Green (1991) 227 Cal.App.3d 692, 701-703.)
With respect to the enhancement under section 186.22, subdivision (b) (1), the prosecutor must separately prove the defendant:
(1) committed the underlying offense “for the benefit of, at the direction of, or in association with” the criminal street gang, and
(2) “with the specific intent” to aid the gang’s criminal conduct. (People v. Funes, supra, 23 Cal.App.4th at p. 1527, fn. 13.)
Thus, there are clearly material differences between the separate elements required to prove the substantive offense defined by subdivision (a), and the enhancement defined by subdivision (b).
In the instant case, the information alleged appellants committed the underlying offenses for the benefit of, at the direction of, and in association with a criminal street
gang, pursuant to the subdivision (b) criminal street gang enhancement. The jury instructions, however, clearly defined the elements required to prove the substantive offense provided by subdivision (a). While the instructions correctly stated the shared definitions of a “criminal street gang” and the “pattern of criminal gang activity,” they set forth the elements of active participation and knowledge required to prove the substantive offense of subdivision (a). In contrast. the instructions completely failed to instruct the jury to find appellants committed the underlying offenses for the benefit of, at the direction of, and in association with a criminal street gang, and with the specific intent to promote, further, and assist in the gang’s criminal conduct, as required by the subdivision (b) enhancement.
Respondent insists the instructions merely contained a “scrivener’s error” by mistakenly identifying the “special allegation” as a violation of subdivision (a) instead of subdivision (b), and appellants were responsible for the mislabeling. Respondent also asserts that appellants requested the modified instructions to include the definitions of subdivision (a), and the instructions were more favorable to the defense than legally required.
These arguments are without merit. As discussed above, the trial court rejected the prosecution’s assertion that appellants intentionally modified the instructions to list the subdivision (a) elements. The court stated that no one intended to define the substantive offense of subdivision (a). Instead, the court adopted the “scrivener’s error” argument, found any variance between the information and the instructions was immaterial, and imposed the enhancements pursuant to subdivision (b).
If the instructions had merely misstated the correct subdivision, then such an error would have been immaterial and the court would have correctly imposed the sentence for the enhancement. However, the jury was clearly instructed as to the elements of the substantive offense of subdivision (a), rather than the enhancement of subdivision (b). These subdivisions do not define “lesser” offenses because the elements are not identical. In order to find the subdivision (b) enhancement true, the jury had to also determine appellants committed the underlying offenses of second degree murder and assault with a firearm for the benefit of, at the direction of, or in association with the criminal street gang, and with the specific intent to aid the gang’s criminal conduct. These issues were never placed before the jury. (See People v. Lohbauer (1981) 29 Cal.3d 364, 368-369.)
Appellants were thus charged with the subdivision (b) enhancement, the jury was instructed pursuant to the subdivision (a) substantive offense, the jury found the “special allegation” as defined by the substantive offense to be true pursuant to subdivision (a), and the court rejected any discrepancies as scrivener’s error and imposed the enhancements pursuant to subdivision (b). “When a defendant pleads not guilty, the court lacks jurisdiction to convict him of an offense that is neither charged nor necessarily included in the alleged crime. [Citations.] This reasoning rests upon a constitutional basis: ‘Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.’ [Citation.]” (People v. West (1970) 3 Cal.3d 595, 612 People v. Lohbauer, supra, 29 Cal.3d 364, 368.)
The trial court improperly rejected appellants’ arguments regarding the validity of the section 186.22 findings, and the jury’s findings and the terms imposed thereon must be stricken as to both appellants.
DISPOSITION
The two findings, and the terms imposed, for the criminal street gang enhancements are reversed and stricken as to both appellants. In all other respects, the judgments are affirmed.
The matter is remanded for to the trial court which is directed to correct its minutes for July 24, 1996, to reflect its denial of appellant Aguilera’s new trial motion. The trial court shall prepare amended abstracts of judgment and forward copies to all appropriate authorities.
Harris, J.
WE CONCUR:
Stone(W.A.), Acting P.J.
Buckley, J.
