Two of defendant’s three convictions under the gang conspiracy statute (§ 182.5) must be stayed pursuant to section 654. Defendant was convicted of three counts under the gang conspiracy statute. The underlying offenses were assault by a life prisoner, conspiracy to commit murder, and attempted murder statute. The three charges all arose from the same course of conduct, an attack on a prison inmate by individuals associated with the Mexican Mafia, and thus section 654 applied.

Section 654 does not bar imposition of the gang enhancement (§ 186.22 (b)(1)(C)) on defendant’s gang conspiracy convictions. Section 654 does not apply because the gang enhancement punishes aspects of criminal conduct beyond those in the gang conspiracy statute. The gang conspiracy statute does not necessarily apply only where the crime is gang-related, i.e., where the crime is committed “for the benefit of, at the direction of, or in association with any criminal street gang.” (§ 186.22 (b)(1).)

Even though defendant was not serving a life sentence, he could be convicted of gang conspiracy to commit assault by a life prisoner when the two actual attackers were serving life sentences. A person may be convicted of conspiracy to commit a crime even if he could not commit the underlying crime itself, and the exception to that rule — where the Legislature has different penalties for the same type of conduct for different offenders — does not apply here.

The trial court did not improperly instruct the jury on the natural and probable consequences doctrine in relation to the assault by a life prisoner charge. There was no evidence that the inmates defendant intended to carry out the attack were themselves life prisoners, but the trial court instructed that defendant could be guilty if “a reasonable person in the defendant’s position would have known that the commission of the assault by a life prisoner was a natural and probable consequence of the commission of the assault by a prisoner.” Chiu did not stand for the proposition that the natural and probable consequences doctrine could not establish liability for crimes requiring malice, and additionally there was no prejudice where the jury necessarily found malice in the two other counts.

The Court of Appeal also rejected defendant’s remaining contentions: (1) Although his indictment alleged “Three Strikes” sentencing as to only two of the three counts, allegations of Three Strikes sentencing as to some counts is sufficient to allege that sentencing as to all eligible counts. (2) There was substantial evidence to support the convictions, and therefore any error in not setting aside the indictment after the Legislature amended the statutes defining gang offenses was harmless. (3) The trial court properly instructed the jury on pattern of criminal gang activity; and (4) The jury did not convict defendant of three conspiracies, but a single conspiracy charged three ways.

The full opinion is available on the court’s website here: https://www4.courts.ca.gov/opinions/documents/B331540.PDF