P. v. Endsley
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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