Under Penal Code section 186.22, as amended by AB 333, where the record contains evidence that could rationally lead to a contrary finding regarding whether the gang as a whole (as opposed to the offenders themselves) benefited from the predicate offenses in a nonreputational manner, the failure to instruct on the amended change was not harmless beyond a reasonable doubt. Defendant Cooper was convicted of first degree murder with gang and firearm enhancements. He appealed. After his conviction, AB 333 was enacted. The Court of Appeal found that the absence of a jury instruction on the new requirement that the alleged predicate offenses must have “commonly benefited” the gang in a “more than reputational” manner (§ 186.22, subd. (e)(1)) was harmless beyond a reasonable doubt. The California Supreme Court granted review. Held: Gang and firearm enhancements reversed. AB 333 now requires that, in order to demonstrate a pattern of criminal gang activity for the purpose of establishing a criminal street gang, the prosecution must prove that the predicate offenses “commonly benefited a criminal street gang, and the common benefit from the offenses is more than reputational.” The parties agreed that the amendments apply retroactively, and that the prejudice from the instructional error is assessed under Chapman v. California (1967) 386 U.S. 18. Here, the predicate offenses were a robbery committed by one gang member and narcotics sales by another. The Attorney General argued any error in the instructions was harmless here, where the gang expert testified that robbery and sale of narcotics are some of the gang’s primary activities. However, the record does not disclose the circumstances surrounding the predicate offenses and the prosecution never introduced any evidence about how the gang commonly benefited from them. While robbery and the sale of narcotics typically provide a financial benefit to the offender, robbery and narcotics sales may of course be committed by gang members only for personal gain. Furthermore, the jury here was specifically instructed that the predicate offenses “that establish a pattern of criminal gang activity[] need not be gang-related,” in accordance with the former law. The case was remanded to permit the People to retry the enhancements.
Case Summaries