Where a defendant is acquitted of a criminal offense, there is not substantial evidence of the commission of that offense for purposes of establishing predicate offenses under Penal Code section 186.22, subdivision (e). Garcia, a member of the “Lil Watts” gang, shot in the direction of rival gang members. He was convicted of shooting a firearm in a grossly negligent manner (Pen. Code, § 246.3, subd. (a)), but acquitted of three counts of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)). The jury found true a number of allegations, including a gang enhancement (Pen. Code, § 186.22, subd. (b)(1)). On appeal, Garcia argued that there was insufficient evidence to support the gang enhancement because the prosecution failed to prove that two or more members of the Lil Watts gang had been convicted of any of the felonies enumerated in section 186.22, subdivision (e) within a three year period of each other. Held: Gang enhancement allegation reversed. The Attorney General agreed with Garcia that the 2005 and 2009 convictions that the prosecution presented to prove “a pattern of criminal gang activity” were not within three years of each other as required by section 186.22, subdivision (e). The court rejected the Attorney General’s argument that the assault offenses on which Garcia was acquitted could be used in conjunction the 2009 conviction to satisfy the predicate offenses requirement under section 186.22, subdivision (e). While evidence that a gang member was prosecuted for an offense, without a showing that he was convicted, may be sufficient evidence of the “commission” of predicate offenses for purposes of section 186.22, subdivision (e), there is not substantial evidence of the commission of an offense when the defendant is acquitted. Accordingly, there was insufficient evidence to support the gang enhancement and Garcia may not be retried.

The trial court erroneously instructed the jury that a conviction was necessary to establish a predicate offense for purposes of section 186.22, subdivision (e). The gang enhancement (Pen. Code, § 186.22, subd. (b)(1)) provides for a five year sentence enhancement when the underlying crime is committed for a criminal street gang. A criminal street gang is a group of three or more persons who engage in a pattern of criminal gang activity. Subdivision (e) of the statute defines “pattern of criminal gang activity,” in pertinent part, as the commission or conviction of two or more of specified offenses within a three year period. Here, the trial court instructed as to a modified version of CALCRIM No. 1401 concerning whether a crime was committed for the benefit of a criminal street gang. The modified instruction stated that the predicate offenses could be proved by conviction of the requisite offenses, but deleted reference to the commission of the predicate offenses. This was error. The element of the “commission” of a predicate crime was not presented to the jury. Therefore, Garcia’s purported commission of a crime could not have been used by the jury as one of the predicate offenses to satisfy the predicate offense requirement under section 186.22, subdivision (e).

Appellant’s conviction for shooting a firearm in a grossly negligent manner (Pen. Code, § 246.3, subd. (a)) did not qualify as a predicate offense under section 186.22, subdivision (e)(23) because defendant was not a minor. The Attorney General also contended that Garcia’s section 246.3 conviction qualified as a predicate offense under section 186.22, subdivision (e)(23). The court rejected this argument. At the time of Garcia’s offense, section 186.22, subdivision (e)(23) provided that possession of a pistol, revolver, or other firearm capable of being concealed upon the person in violation of Penal Code section 12101, subdivision (a)(1) was a predicate offense. Section 12101, subdivision (a)(1) provided that a minor could not possess a pistol, revolver, or other firearm capable of being concealed upon the person. Because there was no evidence in the record that Garcia was a minor, section 186.22, subdivision (e)(23) did not apply in this case.