Endsley
Filed
3/21/13 P. v. Endsley CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ANTHONY ENDSLEY,
Defendant and
Appellant.
F063302
(Kern
Super. Ct. No. BF135033C)
APPEAL from
a judgment of the Superior Court of
James
Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Charles A. French and Tia M.
Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant/defendant
Anthony Endsley (defendant) and codefendant Shamir Hill were charged with count
I, assault by means of force likely to produce great bodily
battery with serious bodily injury (§ 243, subd. (d)); and with the
special allegations that the offenses were committed for the benefit of a
subd. (b)(1)). They were also charged
with count III, the substantive offense of active participation in a criminal
street gang (§ 186.22, subd. (a)).
The charges were based on a brutal
beating inflicted on Dennis Steward, on or about October 12, 2010. Steward was the boyfriend of Shadonna Hill,
sister of both defendant and Shamir Hill.
Rodney Woods and a man only known as “RJ†were also present during the beating,
but they were not charged or tried in this case.
After a
joint jury trial, defendant and Shamir were found not guilty of counts I and
II, the assault and battery on Steward, and the gang enhancements were found
not true. Shamir was also found not
guilty of count III, active participation in a criminal street gang. However, defendant was convicted of active
participation and sentenced to the second strike term of 14 years in prison
(including enhancements for two prior serious felony convictions).
On appeal,
defendant contends that his conviction in count III must be reversed because
the court misdirected the jury as to the evidence and requisite elements to
prove a violation of section 186.22, subdivision (a), active participation in a
criminal street gang, and the court’s misdirection was prejudicial because it
allowed the jury to convict him solely based on his trial admission that he was
a member of a gang, without finding that he willfully promoted, furthered, or
assisted “in any felonious criminal conduct by members of that gang†on or
about October 12, 2010.
(§ 186.22, subd. (a)(1).)
As we will
explain, the court initially gave the jury the appropriate pattern instructions
to define the elements of count III, but it misstated those elements when it
responded to the jury’s questions about count III. Based on the evidence and nature of the
verdicts, we will find that count III must be reversed.
Around 7:00
p.m. on October 11, 2010, Shadonna Leah Hill (Shadonna) and her young
child went to a friend’s apartment to celebrate Shadonna’s birthday.
at the friend’s apartment. There were
other people at the gathering, and they socialized and drank alcohol.
Shadonna and her family
Around 9:00
p.m., Shadonna received a call from her brother, codefendant Shamir Hill
(Shamir), who was looking for her.
name="_ftnref3" title="">[3] Shadonna told Shamir her location. Shortly afterwards, Shamir arrived at the
gathering with Shadonna’s adoptive brother, defendant Anthony Endsley; their
friend, Rodney Woods; and a girl known as “LaJoy.â€
Shadonna testified that Steward had
previously met both defendant and Shamir, and there were never any problems
between them. Shadonna knew Woods
because they had been in a dating relationship three or four years
earlier. Woods, defendant, and Shamir
were good friends. Shadonna testified
that Steward knew about her prior relationship with Woods.
another man who Shadonna had never met, later identified as RJ.
As the
evening continued, Shamir and defendant left the apartment with Woods and
LaJoy. They were driving their mother’s
blue-on-blue SUV. Shamir and defendant
returned with Woods and another girl, “Ashley.â€
Shadonna and defendant left to buy more alcohol and then returned to the
party. Shadonna was not aware of any
problems between Steward and the other guests.
Around 1:00 a.m., the gathering
broke up, and Shadonna said goodbye and hugged defendant and Shamir. Her brothers left in the blue SUV with Woods
and Ashley. Shadonna went back to her
apartment with her daughter and Steward.
Shadonna put her daughter to bed, and then she went outside to say
goodbye to Steward.
The beating
After leaving the party, Shadonna
and Steward stood outside Shadonna’s apartment and said goodbye. The blue SUV arrived with defendant, Shamir,
Woods, Ashley, and RJ. The blue SUV
parked behind Steward’s vehicle and everyone got out. Shadonna did not know RJ, but recognized him
and realized he had been at the party earlier that evening with defendant and
Shamir.
Shadonna testified that Woods said,
“ ‘[W]hat’s up[?]’ †to Steward.
RJ then “sucker punched†Steward in the
blows and fell down with him. Steward
landed on his back, and Shadonna got on top of him to protect him.
Shadonna testified that she
repeatedly asked, “[W]hy is this happening, what’s going on[?]†Defendant and Shamir yanked her hair and
clothing, and tried to pull her off Steward.
Shadonna screamed for help and held onto Steward. She told the others to “ ‘please stop,’ â€
and tried to fight them off. Someone
kicked her, and Shamir told her:
“ ‘[G]et up bitch.’ â€
She did not see any blood on Steward at this time.
Shadonna testified that defendant
and Shamir dragged her off Steward. A
shank of her hair was pulled out, her clothes were torn, and she suffered
scrapes on her leg.
Shadonna testified that defendant
and Shamir repeatedly punched Steward in the face. Defendant and Shamir dragged Steward toward
the garage, and Shadonna ran to her apartment.
She asked Ashley to help Steward, but Ashley did not respond. Shadonna went into her apartment, locked the
door, and called 911. She could hear
loud, booming noises and believed the men were punching Steward against the
garage door. Shadonna believed he was
“too drunk to fight back.â€
Shadonna saw the blue SUV drive
away, and she returned outside while still on the line with 911. Steward was on the ground, bloody and
mumbling. Emergency personnel arrived
and treated Steward.
The neighbor
John
Olivares lived near Shadonna’s apartment.
On the night of the assault, he was awakened by the sounds of yelling
and screaming. He also heard something
banging against metal. He looked out the
window and recognized Shadonna. He also
saw three or four men beating another man against the garage door. It was too dark to see their faces. Shadonna was screaming at the men to stop
beating the victim. Another woman was
also present.
Olivares
testified that one man beat the victim “pretty bad,†the second man beat the
victim “nonstop,†and the other two men also participated in the beating. At some point, “[a] couple of the other guys
went over†and told the primary assailant “to stop and he just did not
stop.†The other men did not try to pull
the primary assailant away from the victim, and the beating continued.
Olivares testified the assailants
repeatedly picked up the victim and threw him against a metal trash
dumpster. The victim hit the dumpster
and slumped to the ground, and the assailants picked him up and again threw him
against the dumpster. Olivares called
911 and told them to hurry.
Oliveras testified that when the
assailants left, Shadonna returned outside and was holding a phone. Olivares testified the victim was lying on
the ground and there was a lot of blood on him.
Steward’s testimony
Dennis Steward testified that he
became very intoxicated at Shadonna’s birthday gathering. However, he did not have any conflicts with
Shadonna, defendant, Shamir, or Woods that evening. Steward testified that he remembered
returning to Shadonna’s apartment and standing outside to say goodbye. He also remembered that defendant, Shamir,
and the other men arrived in a blue SUV.
He thought that Shamir was text messaging on his cell phone. Steward testified that someone punched him in
the right side of his jaw, and he fell down.
He did not see who hit him.
Steward did not remember that Shadonna tried to protect him, or the
additional beating that occurred against the garage door.
Steward testified his next memory
was that he was lying on the ground, with his back against the garage, as
firefighters were trying to help him. He
later woke up at the hospital as he was being treated for his injuries.
The initial investigation
At
approximately 1:15 a.m., Bakersfield Police Officer Mark Calvillo arrived at
Shadonna’s apartment and found Steward lying on the ground, against the
garage. He had multiple facial
injuries. There was blood on the garage
door. Shadonna was crying and emotional
as she described the assault.
Shadonna told Officer Calvillo that
defendant, Shamir, Woods, and another man arrived at her apartment; the
unidentified man punched Steward; she tried to protect Steward; she was pulled
off Steward; and the four men dragged Steward to the garage area and beat
him. Shadonna said she had been at a
party earlier that evening and had been drinking with the same four men. Officer Calvillo did not receive any reports
that gang language or slurs were used during the beating.
Steward’s statement at the hospital
Around 2:20
a.m., Officer Jeff Martin spoke to Steward in the emergency room. Steward was intoxicated. Steward said he was assaulted by defendant
and Shamir. He knew he was punched, but
he did not know how many times.
name="_ftnref5" title="">[5]
About 30
minutes later, police officers conducted a traffic stop of the blue SUV. Woods was driving, and the passengers were
defendant, Shamir, Ashley, and another female.
Shamir was intoxicated. Officer
Brent Stratton searched the vehicle, and he did not see any blood.
hands of either defendant or Shamir to indicate they had been in a fistfight.
Further investigation
Steward was in the hospital for one
week. He suffered a fractured jaw, and
had a surgery where a plate was inserted under both eyes in his right temple
area. He had scars under both eyes from
the surgery, and a scar on the right side of his neck, from his ear to the
chin. His eyesight was never the same
after the beating.
On November
5, 2010, Detective Clayton Madden interviewed Shadonna about the assault. Shadonna stated that an unidentified man
punched Steward, and he fell down.
Defendant and Shamir also punched Steward, and she yelled at them to
stop. Shadonna further stated that
Shamir replied: “[S]hut up, bitch, and
just get off me. I’m an Eastside Crip
and I’m going to hit you.†This
interview was the first time that Shadonna mentioned anything about a gang.
Shadonna said that Shamir was the
person who primarily kicked and punched Steward. Shadonna also said that earlier that evening,
during the gathering at her friend’s apartment, Steward said he had been in a
conversation with Woods about his prior relationship with Shadonna.
Detective
Madden separately interviewed Steward, who said someone hit him on the right
side of his face. Steward knew that he
fell down against the garage, but he could not remember anything after
that. Steward said he never had any
prior problems with Shamir or Woods. He
had never met defendant before that night.
At some
point just before trial, Shadonna’s mother received a letter which asked her to
deliver an enclosed note to Shadonna. She
gave the note to her grandson, who gave it to Shadonna.
Officer
Isaac Aleman testified as the prosecution’s gang expert. Aleman was part of the police department’s
unit that handled gang investigations.
He had daily contact with gang members in Bakersfield. He had spoken to more than 15 members of the
Eastside Crips (ESC) during the previous six months, and between 80 to 100
suspected gang members during his time in the gang unit. Aleman had testified as an expert on one previous
occasion – at the preliminary hearing in this case. The instant trial was the first time he had
testified as an expert in front of a jury.
Aleman testified that he relied on information from other gang members
when he formed his opinions about the ESC and the defendants in this case.
Officer
Aleman testified that the ESC were a criminal
street gang, and he had investigated their primary activities, which
included shootings, murders, burglaries, assaults with deadly weapons,
robberies, carjackings, narcotics sales and narcotics possession, primarily
cocaine base. The ESC was a Sureno gang
and claimed the color blue.
Officer Aleman testified about two
predicate offenses committed by other members of the ESC: in July 2009, two members of the ESC were
convicted of armed robbery and gang charges; and in May 2010, a member of the
ESC was convicted of possession of marijuana for sale. Neither defendant nor Shamir were involved in
these two offenses.
Officer Aleman
testified to his opinion that Shamir was an active member of the ESC: Shamir claimed ESC when he was booked into
jail in this case, in October 2010; there were records of multiple police
contacts when he was with other members of ESC; he was identified by other gang
members as also being a member of ESC; and in 2005, he was shot at by unknown
subjects within ESC territory. Shamir’s
gang moniker was “Project Bar†or “Big Bar.â€
Officer
Aleman also testified to his opinion that defendant was an active member of the
ESC: defendant claimed ESC membership
when he had been booked into jail on five prior occasions, including on this
case in October 2010; in September 2006, he was stopped by police and admitted
to being a member of the 11th Street Project Crips, a subset of the ESC; in
August 2006, he was in a car with other known members of the ESC, and the car
attempted to evade officers; he had been detained during incidents while with
other known members of the ESC; in May 2005, defendant and another person were
shot while they were in the territory of the rival Westside Crips, and
defendant told the police that they were shot because of the gang rivalry. Defendant’s gang moniker was “Lil Ant.â€
Officer
Aleman had no information as to whether Rodney Woods or RJ were members of ESC
or any other gang. Aleman testified that
if the police had information that a person had dropped out of a gang, then
that information would be kept in the records, along with information about
that person’s prior gang contacts.
Officer
Aleman testified that Shadonna’s apartment was within the disputed territory of
the ESC, based on ESC graffiti on a garbage dumpster near her apartment. He did not know who sprayed the graffiti on
that dumpster or when it happened.
Based on a hypothetical question,
Officer Aleman testified to his opinion that if two members of the ESC
assaulted someone within ESC territory, and one of them called out the word
“Eastside Crip,†then the assault would have been committed for the benefit of
the ESC, because it would spread fear and intimidation around the community.
On cross-examination, the defense
attorneys for both defendant and Shamir asked Officer Aleman a variation on the
prosecution’s hypothetical question:
whether the assault would still be gang-related if none of the parties
said anything about ESC, or if none of the parties were members of any
gang. Aleman testified that under those
circumstances, the assault would not appear gang-related without further
investigation. Aleman further testified
that if two gang members were just standing around and not participating in the
assault, then it was not a gang-related offense. Aleman further conceded that not every crime
committed by one or more gang members was a gang-related offense, and it depended
on the circumstance of each crime.
Defendant
testified that he went to the gathering for Shadonna’s birthday with Shamir,
Rodney Woods, and LaJoy. They drank and
visited, and everyone got along.
Defendant testified it was the first time he met Dennis Steward, and
there were no problems between them.
Defendant
testified he left the party with Shamir and Woods. They dropped off LaJoy, and then returned
with Ashley. Everyone was still
drinking. Defendant testified that Woods
and Steward exchanged words and had some type of disagreement, based on
Shadonna’s prior relationship with Woods.
Defendant “neutralized†the situation, and Woods and Steward shook
hands.
Defendant
testified he left the party with Shamir and Ashley; Woods stayed at the
party. Defendant and Shamir picked up
RJ, who was Ashley’s brother and a good friend of Woods. Defendant and the others returned to the
party.
Defendant testified he eventually
left the party with Shamir, Woods, Ashley, and RJ. Defendant admitted he was drunk, but he
thought Shamir was sober because he was their “designated driver.†They bought more alcohol and headed to
Shadonna’s apartment because they had agreed to continue the party there.
Defendant testified that when they
arrived at Shadonna’s apartment, Shadonna and Steward were arguing in the
driveway. Defendant and his friends got
out of the car. Shadonna walked up to
Woods, and she was “ranting and raving†at him, “ ‘[W]hat did you tell him
…?’ â€
Defendant testified that Steward
and Woods started to argue about Woods’s prior relationship with Shadonna. Shadonna got in the middle of the argument,
and Shamir tried to “alleviate†the situation.
Steward was “very†drunk.
Defendant testified that RJ “blind
side[ed]†Steward, and hit him in the face with a solid punch. Steward fell to the ground. Defendant grabbed RJ and asked what he was
doing because he did not know Steward.
Defendant was “tusseling†with RJ.
Defendant believed someone might have pushed Shadonna down.
Defendant testified that Steward
got up, and a fist fight occurred between Steward and Woods. Woods again punched Steward, and Steward fell
back against the garage. Woods and
Steward continued to fight, but Woods got the better of the altercation because
he was younger than Steward.
As Woods and Steward were fighting,
defendant did not intervene, and he held back RJ from getting into the middle
of the fight, “because that’s like a quarrel between two men … a mutual combat
fight. That’s just something that usually
happens.†Defendant saw Woods punch
Steward three or four times while Steward was on the ground by the garbage
dumpster. Defendant thought Shamir took
Shadonna into her apartment during the fight.
He never saw Shamir punch Steward.
He never saw anyone throw Steward against the garage.
After the fight was over, defendant
left with Shamir, Woods, and RJ.
Defendant admitted that he saw Steward lying by the garbage
dumpster. He did not see any blood, and
he did not realize that Steward was hurt.
Defendant insisted that he would have stayed and helped Steward if he
realized that he was hurt, but defendant was very drunk, and it was too dark to
see what had happened.
On cross-examination, defendant
admitted he had a tattoo of a man’s hand holding a .40-caliber gun. He also had a tattoo which said: “11,†which stood for “11th Street†on the
east side. Defendant admitted it was a
gang tattoo, and that the East 11th Street Project Crips was a subset of the
ESC. Defendant denied that he claimed
ESC when he was booked into jail for this case in October 2010.
Defendant admitted he had prior
felony convictions in 2005 for being in a stolen vehicle and leading officers
on a traffic pursuit and for active participation in a criminal street
gang. Defendant admitted he was shot in
2005, but denied that he said he was shot by a rival gang member for being in
the territory of the Westside Crips. In
2007, he was convicted of a felony of moral turpitude, and he ran away from the
police while carrying a loaded .380-caliber handgun.
Defendant testified that at the
time of this case, he was not supposed to be hanging around gang members
because it would violate his parole, but “I can’t see who was a gang member in
this situation other than me.†Defendant
testified he was not with any gang members that night. Defendant further testified that he was not a
gang member anymore. “I’m not involved
with that life anymore. And a man
getting beat up like that, yes, I would stay to help him. I don’t care if my friend did it.… It doesn’t really matter. I would have helped him.â€
The charges
As noted ante, defendant and Shamir were jointly tried before the same jury
for count I, assault by means of force likely to produce great bodily injury
(§ 245, subd. (a)(1)), and count II, battery with serious bodily injury
(§ 243, subd. (d)(2)), with the gang enhancement alleged as to counts I
and II; and count III, active participation in a criminal street gang
(§ 186.22, subd. (a)), with all offenses based on the beating of Steward.
Rodney Woods and RJ were not
charged in this case and did not appear as witnesses.
As we will explain, Shamir was
found not guilty of all charges.
Defendant was found not guilty of counts I and II, the assault on
Steward; but he was convicted of count III, active participation in a criminal
street gang.
The instructions
On appeal, defendant challenges the
validity of his conviction in count III, the substantive gang offense
(§ 186.22, subd. (a)), and contends the court improperly responded to the
jury’s questions about the elements of that offense, contrary to the correct
definitions provided in the pattern instructions. We will thus focus on the procedural aspects
of defendant’s jury trial which relate to count III.
The jury was instructed that the
defendant and Shamir could be guilty of the charged offenses as either direct
perpetrators or aiders and abettors.
(CALCRIM Nos. 400, 401.) The jury
was also instructed not to speculate as to why Rodney Woods was not charged in
the case (CALCRIM No. 206); that other perpetrators may have been involved in
the offenses, and the jury could not speculate on why the other perpetrators
were not charged as codefendants (CALCRIM No. 373); and that the crimes were
alleged to have occurred on or about October 12, 2010. (CALCRIM No. 207.)
The jury
was instructed on the elements of counts I and II, and the gang enhancements
alleged as to those two counts. The gang
enhancement instruction defined the elements of a criminal street gang, primary
activities, and predicate offenses.
(CALCRIM No. 1401.)
As to count III, the jury was
separately instructed with CALCRIM No. 1400, the elements of the substantive
gang offense of active participation in a criminal street gang, in violation of
section 186.22, subdivision (a), as follows.
“To prove that the defendant is
guilty of this crime the People must prove that, one, the defendant actively
participated in a criminal street gang; two, when the defendant participated in
the gang, he knew that members of the gang engage in or have engaged in a
pattern of criminal gang activity; and three,
the defendant willfully assisted, furthered, or promoted felonious criminal
conduct by gang members either by, A, directly and actively committing a felony
offense, or, B, aiding and abetting a felony offense.
“Active participation means involvement with a criminal street
gang in a way that is more than passive or in name only.
“The People do not have to
prove that the defendant devoted all or a substantial part of his or her time
or efforts to the gang or that he was an actual member of the gang.
“A criminal street gang is defined in another instruction from
which you should refer.
“As the term is used here, a willful act is one done wilfully or
on purpose.
“Felonious criminal conduct
any of the following crimes: Assault
with force likely to produce great bodily injury, battery causing serious
bodily injury.
“To decide whether a member of
the gang or defendant committed the
felonies listed, immediately – please refer to the separate instructions
that I’ve given you on those crimes.
“To prove that the defendant aided and abetted felonious criminal
conduct by a member of the gang, the People must prove that, one, a member of
the gang committed the crime; two, the defendant knew that the gang member
intended to commit the crime; three, before or during the commission of the
crime the defendant intended to aid and abet the gang member in committing the
crime; and four, the defendant’s words or comments did, in fact, aid and abet
the commission of the crime.
“Someone aids and abets a crime if he or she
knows the perpetrator’s unlawful purpose and he or she specifically intends to
and does, in fact, aid, facilitate, promote, encourage, or instigate the
perpetrator’s commission of that crime.
“If you conclude that the
defendant was present at the scene of the crime or failed to prevent the crime,
you may consider that fact in determining whether the defendant was an aider
and abettor.
“However, the fact that a
person is present at the scene of a crime or fails to prevent the crime does
not by itself make him or her an aider and abettor.…†(Italics added.)
The jury
also received CALCRIM No. 1403:
“You
may consider evidence of gang activity only for the limited purpose of deciding
whether the defendant acted with the intent, purpose, and knowledge that are
required to prove the gang-related crime enhancements charged or the defendant
had a motive to commit the crimes charged.
“You may also consider this evidence
when you evaluate the credibility or the believability of a witness and whether
you consider the facts and information relied on by an expert witness in
reaching his or her opinion.
“You may not consider this
evidence for any other purpose. You may
not conclude from this evidence that the defendant is a person of bad character
or that he had a disposition to commit any crime.â€
Closing arguments about count III
In closing
argument, the prosecutor argued there was “no question†that both defendant and
Shamir were active members of the ESC, based on Officer Aleman’s testimony
about their prior contacts with law enforcement. In addition, defendant claimed ESC when he
was booked in this case, and he testified that he was a member of the 11th
Street Project Crips, a subset of the ESC.
Steward was beaten in an area where there was ESC graffiti.
“This was a group beating by
more than one Eastside Crip gang members, the defendants, on a vulnerable
59-year-old man [Steward] in territory right there at the apartments were the
graffiti of the gang is located.â€
Defendant’s
attorney argued that RJ and Woods fought with Steward because of his
relationship with Shadonna; there was no evidence that defendant punched or
assaulted Steward; and defendant tried to stop the fight and held back RJ. Defense counsel argued there was no evidence
that the assault was gang-related.
Defense counsel further argued that Shadonna gave various accounts of
the events leading to the assault, including how much alcohol she consumed that
night. Shadonna never said anything
about a gang or the ESC until much later in the investigation.
In rebuttal
argument, the prosecutor addressed the elements of count III, active
participation in a criminal street gang.
He explained that CJIS reports were documentary exhibits to establish
the predicate offenses and prove the ESC was a criminal street gang.
“… [Count III] … does not require gang-related
activity. All it is is that the
defendants are active participants in a criminal street gang with knowledge of
the ongoing pattern of criminal conduct and
that they commit any felony. They
directly commit any felony. Which is the
beating in this case.†(Italics
added.)
The jury’s first question
At 11:45 a.m. on June 28,
2011, the jury began deliberations.
At 2:43 p.m. the jury sent a note
to the court, asking whether there were duplicate verdict forms for defendant
on the charged offenses. At 3:08 p.m.,
the court responded in writing that the forms were not duplicates, but lesser
included offenses of counts I and II.
The jury’s second and third questions
At 3:16 p.m. on June 28, 2011,
the jury asked for a reading of all of defendant’s testimony.
At 3:47 p.m., before the court
responded to the question about defendant’s testimony, the jury sent another
note to the court.
“Is Count 3 a separate charge[;] separate from the
accounts [sic] for 11 October
2010 separate from the assault charges?â€
The court advised the prosecutor
and defense attorneys that when the foreperson handed the note about count III
to the bailiff, the foreperson said “that based on the readback of
[defendant’s] testimony, [that] might mitigate the third question about Count
3.†The court suggested that the jury
should hear defendant’s testimony, and then the court would “ask them what they
want to do with the note about [defendant].â€
Neither defendant objected.
The court recalled the jury into
the courtroom, and stated that it had received the request to hear defendant’s
testimony. “And then we received another
[note] a little bit later, although my understanding is based on the readback,
that might mitigate the third question.â€
The foreperson replied that was correct.
The court noted that it was almost
the end of the day. It directed the
reporter to read defendant’s testimony to the jury, and then advised the
foreperson to “let me know tomorrow morning at nine o’clock how you wish to
proceed. Okay? If you want that other information or not.†The foreperson agreed.
The court’s response to the jury’s question about count III.
At 9:55
a.m. on June 29, 2011, the court called the jury into the courtroom and
addressed the previous day’s question about count III.
“We received a note yesterday afternoon, which reads is
Count 3 a separate charge, separate from the accounts [sic] for 11 October 2010, separate from the assault charges?
“Let me
go through this one at a time and – if I can.
“Is
Count 3 a separate charge? Yes.
“Basically
Counts 1 and 2 are the assault charges, all right? So you have to determine whether or not the
prosecution has met their burden of proving the assault charges in Counts 1 and
2.
“Count
3 then asks you on October the 11th or 12th, whichever – on or about that day,
did they meet the requirements, the prosecution, of proving to you that these
fellas met the elements of being – promoting, furthering, assisting the
gang. Okay?
assault. You can, for the sake of
argument, just assuming arguendo, find they had nothing to do with assault
charges in Counts 1 and 2 but determine they are gang members on this
particular day or not.
“Do you
follow me?
elements are met or not. It’s up to you.
“But
Count 3 is separate from Counts 1 and 2.
“Does
that answer the question at all?â€
name="_ftnref12" title="">[12] (Italics added.)
The
foreperson asked whether it was “[f]or that day, the 11th, 12th, right around
that time?†The court replied that it
was “[o]n or about that day did [the prosecutor] show that the elements are met
on that date.â€
The jury’s fourth question
At 9:25 a.m. on June 29, 2011,
almost immediately after the court completed its answer to the prior question,
the jury sent another note. “Why do we
have two CJIS [Criminal Justice Information System] reports, People’s 18 &
19? What relationship is this to our
defendants?â€
At 9:48 a.m., the jury returned
into the courtroom, and the court responded to the question.
“During the course of the
trial, these items were entered as what’s known as predicate offenses to show –
on behalf of the People trying to show the – the gang allegations require information regarding gang activity and
past gang information.
“Those predicate offenses go to
that.
“If you’ll look at the jury
instruction, it requires that certain things be proven. And those certain things were proven with
those predicate offenses.
“So granted, I believe the
names [of the defendants in those cases] were Anthony English and another
one. I can’t remember.
“Those are the predicate
offenses that help the prosecution show or not show, depending on how you look
at it, the information that’s required in those jury instructions.
“It has nothing to do with
[defendants] Hill and Endsley as it relates to the assault or Count 2.
“It has to do with the gang
information as to whether or not the prosecution can meet all of those elements
that are required in that gang instruction.
“Does that help at all?†(Italics added.)
The jurors responded yes, and they
resumed deliberations at 9:57 a.m.
The jury’s fifth question
At 11:00
a.m. on June 29, 2011, the jury sent the court another question about
count III, the substantive gang offense:
“Clarification on Pen. Code
186.22(a)[.] The ‘and’ #3 does this only
apply to October 10-13 or is his past allowed to be considered[?]â€
The
reporter’s transcript does not reflect whether the court consulted with the
parties regarding this question.
However, the court sent the following written response to the jurors,
apparently referring to CALCRIM No.1400:
“There are three ‘and #3’ in
the instruction. Can you be specific as
to which one you need clarification on.…â€
The record
is silent as to whether the jury gave a more specific question. At 11:20 a.m., the court sent another written
response to the jury:
“You can use past history in
determining if the defendant met the elements needed for the Oct 12
offense. Remember to look at each
defendant separately and individually.…â€
The record is again silent as to whether the court consulted
with the parties before it sent this written response to the jury.
Verdicts
At 11:34
a.m. on June 29, 2011, the jury advised the court that it had reached a
verdict.
Defendant and Shamir were found not
guilty of counts I and II, the assault and battery on Steward, and the gang
enhancements were found not true.
As to count III, active participation
in a criminal street gang, defendant was found guilty and Shamir was found not
guilty.
Motion for new trial
Defendant
filed a motion for new trial on his conviction for count III, active
participation in a criminal street gang, based on several grounds, including
the allegation that the court misdirected the jury when it responded to the two
questions about count III, the substantive gang offense. Defendant asserted the court should have
clarified the elements of count III when it responded to these two questions,
and the court’s erroneous responses were prejudicial and resulted in his
conviction for count III.
The People’s opposition asserted
the court correctly responded to the jury’s questions.
The court’s denial of the new trial motion
The court
denied defendant’s motion for new trial and found that its responses to the
jury’s questions about count III were appropriate.
“And
the question we received from the jury was question number two that they sent
out,… states clarification on Penal Code Section 186.22(a), the, quote, and,
end quote, number three, does this only apply to the October 10th through 13th
or is his past allowed to be considered?
“And as
I recall my answer is yes, his past could be allowed to be considered.… [¶] … [¶]
There are – if you’ll look at CALCRIM 1400 (sic), there are actually two sections in CALCRIM 1300 (
and, quote, unquote, 3.
“The
second one has to do with a common name or common identifying sign or symbol,
et cetera.
“That
was actually covered in Jury Instruction Number 1401. So we didn’t cover that again in 1400.
“
first section of 1400, which states, number one, the defendant actively
participated in a criminal street gang; number two, when the defendant
participated in the gang, he knew what members of the gang engaged in or have
engaged in a pattern of criminal gang activity; and, number three, the
defendant willfully assisted, furthered or promoted felonious criminal conduct
by members of the gang either by, A, directly and actively committing a felony
offense or, B, aiding and abetting a felony offense.
“So
based on that 1400, his past has to be considered and his exposure to and
knowledge of the gang to answer question number two, when the defendant
participated in a gang he knew that members of the gang engaged in or have
engaged in a pattern of criminal gang activity.
And that with that knowledge he
aid – actively participated in or aided and abetted the crime on October the
12th.
“
and abetted based on the testimony.
“The
evidence presented at the trial was that the defendant was a gang member or
admitted to being in a gang in the past.
“Both
past and present offenses show that defendant’s knowledge of the gang and its
primary activities and, therefore, falls within the general rule of
admissibility.†(Italics added.)
After a
bench trial, the court found true the bifurcated special allegations that
defendant had two prior strike convictions and two prior serious felony
convictions. The court dismissed the
prior prison term enhancements for insufficient evidence.
At the
sentencing hearing, the court granted defendant’s request to dismiss one prior
strike conviction. Thereafter, the court
sentenced defendant to the midterm of two years, doubled to four years, with
two consecutive terms of five years for the two prior serious felony
enhancements, for an aggregate term of 14 years.
THE COURT’S RESPONSES TO
Defendant
contends the court misdirected the jurors in response to their questions about
the only charge for which he was convicted in this case: count III, active participation in a criminal
street gang. As set forth
during deliberations, including two questions about count III and the
instructions which defined that offense.
Defendant contends the court’s responses were erroneous because the
responses misstated the elements of count III.
Defendant further contends that the court’s erroneous responses were
prejudicial because the jury acquitted him of the assault and battery of
Steward, but convicted him of active participation in a criminal street gang
solely based on his trial admission that he had been a member of the ESC,
without having to find the requisite “felonious criminal conduct.â€
A.
The
court’s duty to respond to jury questions/ineffective assistance
“The trial
court has a duty to help the jury understand the legal principles the jury is asked
to apply. [Citation.] In particular, under section 1138 the court
must attempt ‘to clear up any instructional confusion expressed by the jury.’ [Citation.]
But ‘this does not mean the court must always elaborate on the standard
instructions. Where the original
instructions are themselves full and complete, the court has discretion under
section 1138 to determine what additional explanations are sufficient to
satisfy the jury’s request for information.’
[Citations.] In exercising that
discretion, the trial court ‘must at least consider how it can best aid
the jury. It should decide as to each
jury question whether further explanation is desirable, or whether it should
merely reiterate the instructions already given.’ [Citations.]â€
(People v. Giardino (2000) 82
Cal.App.4th 454, 465, italics in original.)
Under such circumstances, the trial
court may be “ ‘understandably
reluctant to strike out on its own. But
a court must do more than figuratively throw up its hands and tell the jury it
cannot help.’ [Citation.]†(People
v. Solis (2001) 90 Cal.App.4th 1002, 1015.)
An error under section 1138 does
not require reversal unless defendant can establish prejudice under
that it is reasonably probable he would have obtained a more favorable result,
i.e., acquittal of the charged offense, if the court’s failure to properly
respond to the jury’s question had not occurred. (People
v. Solis, supra, 90 Cal.App.4th
at p. 1015.)
However, a defendant’s failure to object to the court’s proposed or
actual response to a jury’s question waives any objection under section
1138. (People v. Roldan (2005) 35 Cal.4th 646, 729
Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
The failure to object to the trial court’s
response to a jury’s inquiry “should bar defendant from contending on appeal
that a more elaborate response should have been made. If defendant desired such a response, he
should have proposed it.
[Citations.]†(People v. Medina
(1990) 51 Cal.3d 870, 902; People v. Rodrigues (1994) 8 Cal.4th 1060,
1193.)
Defendant acknowledges that the record is silent as to whether defense
counsel objected to the court’s responses to the jury’s two questions about
count III. Defense counsel was present
when the court verbally responded to the jury’s initial question about count
III, and he did not object. The court
gave a written response to the jury’s second question about count III. The record is silent as to whether the court
advised defense counsel about its proposed written response, but defense
counsel never lodged an objection either before or after the jury received the
response.
In light of this record, defendant alternatively contends that to the
extent defense counsel failed to object to the court’s responses, counsel was
prejudicially ineffective. “To
establish ineffective assistance,
defendant bears the burden of showing, first, that counsel’s performance was
deficient, falling below an objective standard of reasonableness under
prevailing professional norms. Second, a
defendant must establish that, absent counsel’s error, it is reasonably
probable that the verdict would have been more favorable to him. [Citations.]â€
(People v. Hawkins (1995) 10 Cal.4th 920, 940, overruled on other
grounds in People v. Lasko (2000) 23 Cal.4th 101, 110 and People v.
Blakeley (2000) 23 Cal.4th 82, 89.)
We will thus examine the merits of
defendant’s contentions that the court misdirected the jury when it responded
to the two questions about count III.
B.
Section
186.22, subdivision (a)
Defendant
was charged and convicted in count III of the substantive offense of active
participation in a criminal street gang, in violation of section 186.22,
subdivision (a), which was enacted as part of the California Street Terrorism
Enforcement and Prevention (STEP) Act.
(§ 186.20 et seq.) Section
186.22, subdivision (a) punishes “[a]ny 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,...â€
“The
substantive offense defined in section 186.22(a) has three elements. Active participation in a criminal street
gang, in the sense of participation that is more than nominal or passive, is
the first element of the substantive offense defined in section 186.22(a). The second element is ‘knowledge that [the
gang’s] members engage in or have engaged in a pattern of criminal gang
activity,’ and the third element is that the person ‘willfully promotes,
furthers, or assists in any felonious criminal conduct by members of that
gang.’ [Citation.]†(People
v. Lamas (2007) 42 Cal.4th 516, 523, brackets in original.)
As to the third element, section
186.22, subdivision (a) does not require that the “felonious conduct†that is
willfully promoted, furthered, or assisted be gang related. (People
v. Albillar (2010) 51 Cal.4th 47, 55 (Albillar).) The California Supreme Court has concluded
that the plain, unambiguous language of section 186.22, subdivision (a) targets
any felonious criminal conduct, not felonious gang-related conduct. (Albillar,
supra, at p. 55.)
However,
“[i]t is not enough that a defendant have actively participated in a criminal
street gang at any point in time .…
A defendant’s active participation must be shown at or reasonably near
the time of the crime. Section 186.22, subdivision
(a) uses the present tense – ‘actively participates’ .…†(Garcia,
supra, 153 Cal.App.4th at p. 1509,
italics added in original.)
Moreover,
“active participation†is “involvement
with a criminal street gang that is more than nominal or passive.†(People
v. Castenada (2000) 23 Cal.4th 743, 747 (Castenada).) The STEP Act
“does not criminalize mere gang membership; rather, it imposes increased
criminal penalties only when the criminal conduct is felonious†in the case of
the substantive offense, and “committed not only ‘for the benefit of, at the
direction of, or in association with’ a group that meets the specific statutory
conditions of a ‘criminal street gang,’ but also with the ‘specific intent to
promote, further,
conduct by gang members,’ [citation.]†in the case of the gang
enhancement. (People v. Gardeley (1996) 14 Cal.4th 605, 623-624.)
“[M]embership alone in a gang is not
sufficient to satisfy the requirement of active participation†for a violation
of section 186.22, subdivision (a). (
The California Supreme Court has explained that “[m]ere active and
knowing participation in a criminal street gang is not a crime. Applying the third element of section
186.22(a), a defendant may be convicted of the crime of gang participation only
if he also willfully does an act that ‘promotes, furthers, or assists in any
felonious criminal conduct by members of that gang.’ (§ 186.22(a).)†(People
v. Rodriguez (2012) 55 Cal.4th 1125, 1130-1131 (Rodriguez).)
In considering the STEP Act, “the
Legislature was careful to observe that ‘mere
membership [in a gang] is not punishable under the bill. The United States Supreme Court has held that
mere association with a group cannot be punished unless there is proof that the
defendant knows of and intends to further its illegal aims. [Citation.]
This bill imposes sanctions on active participation in the gang only
when the defendant knows about and specifically intends to further the criminal
activity; or where he knows of the criminal activity and willfully promotes, furthers,
or assists it.’ [Citation.]†(People
v. Mesa (2012) 54 Cal.4th 191, 196-197, italics added, first brackets in
original.) The Legislature thus
attempted to “avoid any potential due process concerns that might be raised by
punishing mere gang membership.†(
1.
The
California Supreme Court has clarified these aspects of section 186.22,
subdivision (a) in two noteworthy cases.
In Castenada, the court addressed the first element of section
186.22, subdivision (a), as to what constitutes active gang participation. Castenada
held that someone who “ ‘actively participates in any criminal street
gang’ †need not be a leader in that gang as long as the person’s
involvement “is more than nominal or passive.â€
(Castenada,
subdivision (a), “it was fully cognizant of the guilty knowledge and intent
requirements†which the United States Supreme Court had previously articulated
in Scales v. United States (1961) 367
U.S. 203 (Scales). (Castaneda,
supra, at p. 749.)
Castenada
explained that when the Legislature enacted section 186.22, subdivision (a), it
relied on Scales and limited
“liability to those who promote, further, or assist a specific felony committed
by gang members and who know of the gang’s pattern of criminal gang
activity. Thus, a person who violates
section 186.22(a) has also aided and abetted a separate felony offense
committed by gang members,...†(Castenada,
supra, 23 Cal.4th at p. 749.) Castenada noted that “[t]hese
statutory elements necessary to prove a violation of section 186.22(a) exceed
the due process requirement of personal guilt that the United States Supreme
Court articulated in Scales,...†(Castenada,
supra, 23 Cal.4th at p. 749.)
Castenada “thus rejected the defendant’s claim that section
186.22(a) criminalized lawful association since the statute required that ‘a
defendant “actively participate[ ]†in a criminal street gang while also aiding
and abetting a felony offense committed by the gang’s members.’ [Citation.]â€
(Rodriguez,
In Rodriguez, the court held that the third element required to prove
the substantive gang offense – that the person “willfully promotes, furthers,
or assists in any felonious criminal conduct by members of that gang†– cannot
be satisfied when a gang member commits a felony while acting alone. (Rodriguez,
supra, 55 Cal.4th at p. 1128.) Section 186.22, subdivision (a) “reflects the
Legislature’s carefully structured endeavor to punish active participants for
commission of criminal acts done collectively
with gang members.†(
In reaching this conclusion, Rodriguez found it “significant†that section 186.22, subdivision
(a) required a defendant “to promote, further, or assist members of the gang.†(
“Section 186.22(a) speaks of ‘criminal conduct by members
of that gang.…’ [] ‘[M]embers’ is a plural noun. The words ‘promotes, furthers, or assists’
are the verbs describing the defendant’s acts, which must be performed
willfully. The phrase ‘any felonious
criminal conduct’ is the direct object of these verbs. The prepositional phrase ‘by members of that
gang’ indicates who performs the felonious criminal conduct. Therefore, to satisfy the third element, a
defendant must willfully advance, encourage, contribute to, or help members
of his gang commit felonious criminal conduct.
The plain meaning of section
186.22(a) requires that felonious criminal conduct be committed by at least two
gang members, one of whom can include the defendant if he is a gang member. (See § 186.22, subd. (i).)†(Id.
at p. 1132, first italics in original, second italics added.)
interpretation was consistent with the Legislature’s attempt to avoid due
process concerns when it drafted section 186.22, subdivision (a).
“
prohibition against punishing mere gang membership, and its use of the
plural ‘members’ in section 186.22(a) reflected the Legislature’s attempt to
provide a nexus between the felonious conduct and gang activity that avoided
the concerns raised in Scales.
[Citation.] The Attorney
General’s interpretation that a gang member may satisfy the statute simply by
committing a felony alone reads out of
the statute the nexus between defendant’s conduct and gang activity that the
Legislature put in the statute by requiring one act with another gang member.†(Rodriguez,
supra, 55 Cal.4th, at p. 1135,
italics added.)
“
to avoid punishing mere gang membership in section 186.22(a) by requiring that
a person commit an underlying felony with at least one other gang member. Scales found the membership provision
of the Smith Act constitutional because it criminalized ‘active’ membership
coupled with knowledge of the organization’s criminal goals and the specific
intent that such goals be furthered. In
this context, Scales stated, ‘we can perceive no reason why one who
actively and knowingly works in the ranks of that organization, intending to
contribute to the success of those specifically illegal activities, should be
any more immune from prosecution than he to whom the organization has assigned
the task of carrying out the substantive criminal act.’ [Citation.]
As we observed in Albillar, however, section 186.22(a), unlike
the gang enhancement in section 186.22(b)(1), does not require a specific
intent to further or promote the gang (only knowledge of the gang’s pattern of
criminal activity). [Citation.] Further, as previously noted, Albillar
concluded section 186.22(a) does not require that the underlying felony be gang
related. [Citation.]†(Rodriguez,
supra, 55 Cal.4th at p. 1134-1135.)
“Section 186.22(a) and section 186.22(b)(1) strike at
different things. The enhancement under
section 186.22(b)(1) punishes gang-related conduct, i.e., felonies committed
with the specific intent to benefit, further, or promote the gang. [Citation.]
However, ‘[n]ot every crime committed by gang members is related to a
gang.’ [Citation.] As such, with section 186.22(a), the
Legislature sought to punish gang members who acted in concert with other
gang members in committing a felony regardless of whether such felony was gang
related. [Citation.]†(Id.
at p. 1138, italics in original.)
defendant in that case, who was a gang member but acted alone when he committed
an attempted robbery, could not be guilty of active participation in a criminal
street gang in violation of section 186.22, subdivision (a). (Rodriguez,
supra, 55 Cal.4th at pp. 1138-1139.)
C.
Analysis
As applied
to the instant case, the pattern instructions initially given to the jury
correctly stated the applicable law and requisite elements to prove count III,
the substantive offense of active participation in a criminal street gang in
violation of section 186.22, subdivision (a).
CALCRIM No. 1400 defined the three elements of the offense, and
correctly stated that the third element – that defendant willfully assisted,
furthered, or promoted felonious criminal conduct by gang members – could be
satisfied either by his direct commission of a felony or by aiding and abetting
a felony offense.
CALCRIM No. 1400 further stated
that “[f]elonious criminal conduct
means committing or attempting to commit any of the following crimes: Assault with force likely to cause great
bodily injury, battery causing serious bodily injury.†These were the two offenses charged against
defendant and Shamir in counts I and II, based on the beating of Dennis
Steward.
Finally, the jury was instructed as
to all three counts that defendant and Shamir could be guilty as either direct
perpetrators or as aiders and abettors, and that the jury could not consider
why Rodney Woods or other alleged perpetrators were not joined in this case.
The pattern
instructions thus correctly set forth the applicable law for the charged
offenses. However, the court’s responses
to the jury’s questions about count III undermined these instructions and
misdirected the jury as to the prosecution’s burden of proving defendant’s
guilt for count III, active participation in a criminal street gang. The jury initially asked to hear the entirety
of defendant’s trial testimony, and then asked for clarification about whether
the assault and battery charges were separate from count III, the substantive
gang offense. The foreperson indicated
that the jury might resolve its problem upon rehearing defendant’s testimony,
but the trial court apparently believed it had to respond to the question after
the testimony was read to them.
When the
court sought to respond to the jury’s question about whether the assault and
battery charges were separate from the substantive gang offense, it correctly
stated that the charges were separate.
However, the court then continued with its answer and incorrectly stated
that the jury could find defendant and Shamir “had nothing to do†with the
assault and battery against Steward “but determine they are gang members on
this particular day,†as charged in count III.
The foreperson asked for further clarification about whether count III
was based on the day of the assault, October 11 or 12, 2010, and the court
replied: “On or about that day did [the
prosecutor] show that the elements are met on that date.â€
The court’s
response was erroneous. As we have
explained, section 186.22, subdivision (a) does not criminalize mere gang
membership, and “membership alone in a particular gang is not sufficient to
satisfy the requirement of active participation.†(Garcia,
supra, 153 Cal.App.4th at p. 1509;
supra, 23 Cal.4th at p. 747.)
The court’s
response might not have been prejudicial except for the nature of the jury’s
verdicts in this case. Defendant and
Shamir were charged with the assault and battery of Steward. The instructions correctly stated that the
felonious criminal conduct required to prove a violation of section 186.22,
subdivision (a), was based on the commission or attempted commission of
“[a]ssault with force likely to cause great bodily injury, battery causing
serious bodily injury,†the two offenses based on the beating of Steward, which
occurred on or about October 12, 2010.
The jury was instruct
| Description | Appellant/defendant Anthony Endsley (defendant) and codefendant Shamir Hill were charged with count I, assault by means of force likely to produce great bodily injury (Pen. Code,[1] § 245, subd. (a)(1)), and count II, battery with serious bodily injury (§ 243, subd. (d)); and with the special allegations that the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). They were also charged with count III, the substantive offense of active participation in a criminal street gang (§ 186.22, subd. (a)). The charges were based on a brutal beating inflicted on Dennis Steward, on or about October 12, 2010. Steward was the boyfriend of Shadonna Hill, sister of both defendant and Shamir Hill. Rodney Woods and a man only known as “RJ†were also present during the beating, but they were not charged or tried in this case. After a joint jury trial, defendant and Shamir were found not guilty of counts I and II, the assault and battery on Steward, and the gang enhancements were found not true. Shamir was also found not guilty of count III, active participation in a criminal street gang. However, defendant was convicted of active participation and sentenced to the second strike term of 14 years in prison (including enhancements for two prior serious felony convictions). On appeal, defendant contends that his conviction in count III must be reversed because the court misdirected the jury as to the evidence and requisite elements to prove a violation of section 186.22, subdivision (a), active participation in a criminal street gang, and the court’s misdirection was prejudicial because it allowed the jury to convict him solely based on his trial admission that he was a member of a gang, without finding that he willfully promoted, furthered, or assisted “in any felonious criminal conduct by members of that gang†on or about October 12, 2010. (§ 186.22, subd. (a)(1).) As we will explain, the court initially gave the jury the appropriate pattern instructions to define the elements of count III, but it misstated those elements when it responded to the jury’s questions about count III. Based on the evidence and nature of the verdicts, we will find that count III must be reversed. |
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