Failure to instruct that the alleged predicate offenses must have “commonly benefited” a gang in a “more than reputational” manner was not harmless error

People v. Cooper (Cal., May 25, 2023, No. S273134) 2023 WL 3637806

Summary: Cooper  was convicted of first degree murder with gang and firearm enhancements. He appealed. The Court of Appeal affirmed the conviction and the California Supreme Court granted review . The Supreme Court held that trial court’s error was not harmless in failing to provide jury instruction that alleged predicate offenses must have commonly benefited gang in more than reputational manner.

Assembly Bill 333

Assembly Bill 333effective January 1, 2022, amended the offense of active participation “in a criminal street gang” as well as the sentencing enhancement available for a felony committed “for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members.” Assembly Bill 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 two predicate offenses “commonly benefited a criminal street gang, and the common benefit from the offenses is more than reputational.”

Cooper was convicted of first degree murder with gang and firearm enhancements and a prior strike conviction. Cooper’s jury was instructed under the prior law, that the new requirements in section 186.22 apply retroactively to Cooper’s case on appeal  and that the prejudice from the instructional error is assessed under Chapman v. California(1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (Chapman). Applying the Chapman standard, the Supreme Court held that the failure to instruct that the alleged predicate offenses must have “commonly benefited” the gang in a “more than reputational” manner was not harmless beyond a reasonable doubt.

Here, the record contains evidence that could  lead to a contrary finding regarding whether the gang as a whole (as opposed to the predicate offenders themselves) benefited from the offenses in a nonreputational manner. The Court reversed  Cooper’s gang enhancement, as well as the firearm enhancement that is contingent upon the gang enhancement, and remanded the case to the Court of Appeal with instructions to remand the case to the superior court for a retrial.

Background: Cooper’s jury was instructed on the gang enhancement according to the former section 186.22 with CALCRIM No. 1401. The jury was instructed that to prove the gang enhancement, the prosecution must prove the “defendant committed or attempted to commit the crime for the benefit of, at the direction of, or in association with a criminal street gang; and  That the defendant intended to assist, further, or promote criminal conduct by gang members.” The jury was instructed that the definition of a “criminal street gang” requires a “pattern of gang activity” and “as one or more of its primary activities,” the commission of the predicate offenses of robbery and the sales of narcotics. To establish a “pattern of gang activity,” the prosecution must prove “at least one of” the predicate robbery and the sales of narcotics offenses and that the offenses “were committed on separate occasions or were personally committed by two or more persons.” Under the former law, the jury was instructed that the predicate offenses “if any, that establish a pattern of criminal gang activity, need not be gang-related.” The jury was not instructed, as Assembly Bill 333 now requires, that the predicate offenses, if any, must have “commonly benefited [the] criminal street gang, and the common benefit from the offenses is more than reputational.” (§ 186.22, subd. (e)(1).)

Assembly Bill 333 amended section 186.22’s definition of a “criminal street gang” to require proof of additional elements. In order to prove “a pattern of criminal gang activity” for the purpose of establishing a criminal street gang, the prosecution must now prove both that the required predicate offenses “commonly benefited [the] criminal street gang” and that “the common benefit from the offenses is more than reputational.”

Assembly Bill 333 clarifies that “Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.”

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

Since Assembly Bill 333’s new elements did not exist at the time of Cooper’s trial, the prosecution made no attempt to prove that the alleged predicate offenses provided a more than reputational common benefit to the gang.

Cooper’s jury was specifically instructed that the predicate offenses “that establish a pattern of criminal gang activity[ ] need not be gang-related.” This instruction directly contradicts Assembly Bill 333’s new requirement that the predicate offenses “commonly benefited [the] criminal street gang, and the common benefit from the offenses is more than reputational.” (§ 186.22, subd. (e)(1).) Based upon the record, a jury could have reasonably concluded that the predicate offenses at issue were committed for personal gain alone.

The only evidence relied on by the Attorney General for proving that the alleged predicate offenses provided a common benefit that is more than reputational to the gang is that there was a robbery and a sale of narcotics by gang members and that a primary activity of the gang is to commit robberies and the sale of narcotics. Under these circumstances, the Supreme Court could not conclude “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” (Chapman, supra, 386 U.S. at p. 24, 87 S.Ct. 824.)10

Disposition

The Court reversed the Court of Appeal’s affirmance of Cooper’s gang enhancement. Since the firearm enhancement alleged under section 12022.53, subdivision (e)(1), is contingent on a true finding on the gang enhancement under section 186.22, it reversed the Court of Appeal’s affirmance of that firearm enhancement as well, and remanded the case to the Court of Appeal with instructions to remand the case to the superior court for any retrial of the same.

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