Filed 1/13/15
                           CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT


THE PEOPLE,                                          H039071
                                                    (Monterey County
        Plaintiff and Respondent,                    Super. Ct. No. SS121299)

        v.

MICHAEL RAY GONZALES,

        Defendant and Appellant.



        Defendant Michael Ray Gonzales was convicted by jury trial of permitting a
                                                                                 1
person to carry a loaded firearm in a vehicle (Pen. Code, § 26100, subd. (a)). The jury
also found true a gang allegation (§ 186.22, subd. (d)). The court suspended imposition
of sentence and placed defendant on probation. On appeal, defendant challenges his
conviction on the ground that the prosecution failed to prove that he knew the gun was
loaded. Section 26100, subdivision (a) makes it a misdemeanor “for a driver of any
motor vehicle . . . knowingly to permit any other person to carry into or bring into the
vehicle a firearm in violation of Section 25850 of this code or Section 2006 of the Fish
and Game Code.” (§ 26100, subd. (a), italics added.) Section 25850 and Fish and Game
Code section 2006 apply only where the firearm is loaded. Defendant also contends that
the trial court prejudicially erred in failing to instruct the jury that knowledge the firearm



1
        Subsequent statutory references are to the Penal Code unless otherwise specified.
is loaded is an element of the offense. In addition, defendant challenges the sufficiency
                                                                           2
of the evidence to support the jury’s true finding on the gang allegation.
       We disagree with the First District Court of Appeal’s holding in In re Ramon A.
(1995) 40 Cal.App.4th 935 (Ramon A.) and find that a section 26100, subdivision (a)
conviction requires proof that the defendant knew the firearm was loaded. Although the
prosecution presented sufficient evidence to prove this element of the offense, the trial
court prejudicially erred by failing to instruct the jury that the prosecution was required to
prove this fact. Consequently, we reverse the judgment and remand for a new trial. We
find that there was sufficient evidence to support the gang allegation, so the prosecution
may retry that allegation in conjunction with the substantive offense.


                                          I. Facts
       On the afternoon of July 8, 2012, police officers pulled over defendant’s vehicle.
Defendant, aged 27, was the driver, and his two passengers were 15-year-old boys. The
officers asked defendant and his passengers to exit the vehicle. As the front seat
passenger, John Doe One, got out of the vehicle, he told the officers: “ ‘I’m not gonna lie
to you, sir. I have a loaded gun on me.’ ” He was wearing baggy clothing that concealed
the firearm. John Doe One told the officers that the gun was in his waistband, and one of
the officers removed it. The gun was a functional .45-caliber semiautomatic pistol that
had been reported stolen. It had bullets in its magazine. John Doe One’s cell phone bore
references to the Santa Rita Bahamas Norteno gang. The rear seat passenger, John Doe
Two, was a self-acknowledged Santa Rita Bahamas Norteno gang member. A search of




2
        Defendant also challenges two of the probation conditions, but we need not reach
these challenges in light of our reversal of his conviction.


                                              2
the vehicle turned up “Norteno rap” compact discs in the glove compartment, center
console, and trunk.
       Defendant was arrested. He admitted that he knew there was a firearm in the
vehicle, although he had not seen it. “John Doe One had told him prior to entering the
vehicle, quote, ‘I got something,’ grabbed his waistband area and shook it up and down,
making it pretty obvious to [defendant] that he had a firearm with him.” Defendant told
the police that he had been taking the two boys at their request to “Northgate Village,”
which the police knew to be “a common Norteno hangout.” Defendant’s cell phone bore
Norteno indicia and particularly indicia of the Santa Rita Bahamas Norteno gang.


                                       II. Discussion
                                 A. Substantive Offense
       Defendant contends that section 26100, subdivision (a) is not violated unless the
driver of the vehicle knows the firearm is loaded. On this basis, he contends that the
evidence was insufficient and that the trial court’s instruction on the elements of this
offense was prejudicially deficient.
                                       1. Background
       At the instruction conference, the prosecutor raised an issue about the instruction
on the elements of the substantive offense. “[S]omething did come to my attention as far
as [CALCRIM No.] 2530 goes. That is, that in the jury instructions for 26100(a), number
3, it says that the defendant knew that he was permitting someone to carry a ‘loaded’
firearm in the vehicle. I don’t believe he had to know it was loaded. I believe he just had
to know it was a firearm. [¶] When you look at the instruction from 25850 [(CALCRIM
No. 2530)], it says in element two, which kind of corresponds to element three, that the




                                              3
                                                                                3
person knew he was carrying a firearm. The word ‘loaded’ does not appear.” The
defense objected “to removing the knowledge requirement regarding the firearm being
loaded.” The court overruled the objection. “[T]he Court finds it improbable that the
[L]egislature meant that if you permit someone to bring a firearm into your vehicle you
have to then verify whether it’s loaded or not.” “It would put, arguably, the People in an
impossible position of how do you prove knowledge and then knowledge that the gun
was loaded.”
       The trial court instructed the jury: “The defendant is charged in Count 1 with
permitting a person to bring a loaded firearm into a vehicle, in violation of Penal Code
Section 26100(a). [¶] To prove that the defendant is guilty of this crime, the People must
prove: [¶] One, that the defendant was the driver of the vehicle; [¶] Two, the defendant
permitted another person to carry a loaded firearm in a vehicle, in violation of Penal Code
Section 25850; [¶] And three, the defendant knew he was permitting someone to carry a
firearm in the vehicle. [¶] To prove that another person was carrying a loaded firearm in
violation of Penal Code Section 25850, the People must prove that: [¶] One, another
person carried a loaded firearm on his person or in a vehicle; [¶] Two, the person knew
he was carrying a firearm; [¶] And three, at that time that person was in a public place or
on a public street in an unincorporated city.”
                                        2. Analysis
       Section 26100, subdivision (a) makes it a misdemeanor “for a driver of any motor
vehicle . . . knowingly to permit any other person to carry into or bring into the vehicle a



3
       CALCRIM does not contain a pattern instruction for a violation of section 26100,
subdivision (a). CALCRIM No. 2530, the pattern instruction for a violation of section
25850, subdivision (a), which is the underlying offense for a violation of section 26100,
subdivision (a), was apparently used as a template for the instruction given by the trial
court.


                                              4
firearm in violation of Section 25850 of this code or Section 2006 of the Fish and Game
Code.” (§ 26100, subd. (a), italics added.) Section 25850 and Fish and Game Code
                                                      4
section 2006 apply only where the firearm is loaded. Neither of them contains an
express knowledge element.
       Section 26100, subdivision (a) contains an express knowledge element. The issue
before us in this case is the scope of the required knowledge. Defendant contends that
the knowledge element of a section 26100, subdivision (a) offense “unambiguous[ly]”
requires proof that the driver not only knew that the passenger had a firearm but also
knew that the firearm was loaded. He observes that “[t]he word ‘knowingly’ imports
only a knowledge that the facts exist which bring the act or omission within the
provisions of this code.” (§ 7, subd. (5).) Since one of the facts that must exist for a
driver’s act to be “within the provisions” of section 26100, subdivision (a) is that the
passenger’s firearm is loaded, defendant reasons that the knowledge element necessarily
requires knowledge of that fact.
       The Attorney General, on the other hand, relies on the holding in Ramon A. that a
violation of former section 12034 (the predecessor to section 26100, subdivision (a)) did
                                                                             5
not require proof that the driver knew the passenger’s firearm was loaded. Defendant


4
       Section 25850 provides: “A person is guilty of carrying a loaded firearm when the
person carries a loaded firearm on the person or in a vehicle while in any public place or
on any public street in an incorporated city or in any public place or on any public street
in a prohibited area of unincorporated territory.” (§ 25850, subd. (a), italics added.) Fish
and Game section 2006 is similar. “It is unlawful to possess a loaded rifle or shotgun in
any vehicle or conveyance or its attachments which is standing on or along or is being
driven on or along any public highway or other way open to the public. (Fish & G. Code,
§ 2006.)
5
       Former section 12034, as originally enacted in 1977, read: “It is a misdemeanor
for a driver of any motor vehicle . . . knowingly to permit any other person to carry into
or bring into the vehicle a firearm in violation of Section 12031 [the predecessor to
section 25850] . . . or knowingly to permit such person to discharge any firearm from
                                                                                 (continued)

                                              5
responds that the First District’s decision in Ramon A. is inconsistent with the California
Supreme Court’s subsequent holdings that a defendant must know of the characteristics
of a weapon that make its possession unlawful even where the specific statute itself
contains no express knowledge requirement.
       We exercise de novo review in addressing this issue of statutory construction.
(People v. Brewer (2011) 192 Cal.App.4th 457, 461.) “Statutory construction begins
with the plain, commonsense meaning of the words in the statute, ‘ “because it is
generally the most reliable indicator of legislative intent and purpose.” ’ [Citation.]
‘When the language of a statute is clear, we need go no further.’ ” (People v. Manzo
(2012) 53 Cal.4th 880, 885 (Manzo).) Where the language of the statute is potentially
ambiguous, “ ‘[i]t is appropriate to consider evidence of the intent of the enacting body in
addition to the words of the measure, and to examine the history and background of the
provision, in an attempt to ascertain the most reasonable interpretation.’ [Citation.] We
may also consider extrinsic aids such as the ostensible objects to be achieved, the evils to
be remedied, and public policy. [Citation.] When construing a statute, ‘our goal is “ ‘to
ascertain the intent of the enacting legislative body so that we may adopt the construction
that best effectuates the purpose of the law.’ ” ’ ” (Manzo, at p. 886.)
       In Ramon A., the First District examined former section 12034’s statutory
language and its legislative history and found them to be ambiguous. However, it
concluded that the purpose of the statute, to deter drive-by shootings, unambiguously
required that knowledge that the firearm was loaded not be an element of the offense.
(Ramon A., supra, 40 Cal.App.4th at pp. 941-942.) “This legislative objective—to deter


such vehicle in violation of any provision of this code.” (Stats. 1977, ch. 528, § 1,
p. 1732.) At that time, former section 12031 provided, with certain exceptions, that
“every person who carries a loaded firearm on his person or in a vehicle . . . is guilty of a
misdemeanor.” (Stats. 1976, ch. 1426, § 3, p. 6377.) Former section 12031 had always
contained this provision. (Stats. 1967, ch. 960, § 1, p. 2459.)


                                              6
drive-by shootings by making an owner or driver criminally responsible for the presence
of loaded guns in the vehicle—cannot be effectively served if conviction under section
12034 requires proof of knowledge that the gun was loaded. The fact that a gun is loaded
is rarely evident without inspection. Even if the driver possesses such knowledge, it can
only be proven by an admission, or by evidence that another person told the driver the
gun was loaded, that the act of loading occurred in the driver’s presence, or that the driver
acquired such knowledge from some other event, such as the gun’s being fired. Rare
indeed will be the prosecution under section 12034 in which any such evidence is
available. As a practical matter, then, appellant’s reading would render the statute largely
impotent to achieve its avowed purpose.” (Ramon A., at p. 941.) “The duty thus imposed
is little different from that which burdens the immediate possessor of the gun under
section 12031(a)(1). It is settled that the latter statute does not require proof that the
possessor knew the gun was loaded. (People v. Dillard (1984) 154 Cal.App.3d 261, 263,
201 Cal.Rptr. 136; see People v. Harrison (1969) 1 Cal.App.3d 115, 120, 81 Cal.Rptr.
396.)” (Ramon A., at p. 942.) The First District held that the burden was on the driver to
ensure that the passenger’s firearm was not loaded.
       People v. Dillard was a prior First District opinion holding that knowledge that the
firearm is loaded was not an element of a violation of former section 12031, the
predecessor to section 25850. (People v. Dillard (1984) 154 Cal.App.3d 261, 266
(Dillard).) In Dillard, the First District concluded that “Section 12031, subdivision (a),
is, in our view, a quintessential public welfare statute which embraces a legislative
judgment that in the interest of the larger good, the burden of acting at hazard is placed
upon a person who, albeit innocent of criminal intent, is in a position to avert the public
danger.” (Dillard, at p. 266.)
       The First District’s holdings in Dillard and Ramon A. preceded the “evolution of
[the California Supreme Court’s] mens rea jurisprudence.” (Stark v. Superior Court
(2011) 52 Cal.4th 368, 395 (Stark).) In 2000, the California Supreme Court decided In re

                                               7
Jorge M. (2000) 23 Cal.4th 866 (Jorge). Jorge concerned former section 12280, which
prohibited possession of an assault weapon and did not contain an express mens rea
element. The issue was whether section 12280 nevertheless could not be violated without
knowledge of the character of the weapon or instead was a “public welfare offense” that
could be committed without proof of any particular mental state. (Jorge, at pp. 872-873.)
       In Jorge, the California Supreme Court applied a seven-factor test in deciding
whether the Legislature had intended for the offense to be a “public welfare offense.” It
considered: “(1) the legislative history and context; (2) any general provision on mens
rea or strict liability crimes; (3) the severity of the punishment provided for the crime
(‘Other things being equal, the greater the possible punishment, the more likely some
fault is required’); (4) the seriousness of harm to the public that may be expected to
follow from the forbidden conduct; (5) the defendant’s opportunity to ascertain the true
facts (‘The harder to find out the truth, the more likely the legislature meant to require
fault in not knowing’); (6) the difficulty prosecutors would have in proving a mental state
for the crime (‘The greater the difficulty, the more likely it is that the legislature intended
to relieve the prosecution of that burden so that the law could be effectively enforced’);
(7) the number of prosecutions to be expected under the statute (‘The fewer the expected
prosecutions, the more likely the legislature meant to require the prosecuting officials to
go into the issue of fault’).” (Jorge, supra, 23 Cal.4th at p. 873.)
       The statutory language and legislative history in Jorge were inconclusive. (Jorge,
supra, 23 Cal.4th at pp. 872-875.) The decisions interpreting other statutes prohibiting
possession of weapons were not definitive. (Id. at pp. 875-879.) California’s general
statutory provision on mens rea, section 20, required a minimum of criminal negligence.
(Jorge, at p. 879.) A violation of former section 12280 was a wobbler, but, depending on
whether prior convictions were alleged, it was punishable by as much as life in prison.
(Jorge, at p. 879.) “The Legislature’s choice of potential felony punishment for violation
of section 12280(b), however, reinforces the presumption expressed by section 20 and

                                               8
suggests that correspondingly strong evidence of legislative intent is required to exclude
mens rea from the offense.” (Id. at p. 880.) The California Supreme Court held that,
despite the absence of an express mens rea element in the statute, the offense required
proof that “the defendant knew or reasonably should have known the firearm possessed
the characteristics bringing it within the [statute].” (Id. at p. 887.)
       Our task in construing section 26100, subdivision (a) begins with the statutory
language. The statute contains an express knowledge requirement. The Legislature
described the offense as “knowingly to permit any other person to carry into or bring into
the vehicle a firearm in violation of Section 25850 . . . .” (§ 26100, subd. (a), italics
added.) Defendant claims that this statutory language unambiguously requires
knowledge that the firearm is loaded. We do not find this language to be without
ambiguity. One reading is that the “knowingly to permit” language applies only to the
facts expressly identified, the person carrying a firearm into the vehicle. Another reading
is that the “knowingly to permit” language also applies to the facts making the carrying
of the firearm into the vehicle “in violation of Section 25850.” The First District
concluded in Ramon A. that this statutory language was ambiguous, and with that
conclusion we agree. The question of whether the owner/driver must know the facts that
make the passenger’s carrying of the firearm into the vehicle a violation of section 25850
or need only know that the passenger is carrying a firearm cannot be resolved based
solely on the statutory language. The word “knowingly” clearly modifies “permit,” and
“permit” clearly applies to the carrying of the firearm into the vehicle. Whether
“knowingly” and “permit” apply to the facts necessary to a violation of section 25850 is
not explicitly addressed and is not clear from the statutory language alone.
       We next examine the legislative history, background, and purpose of the statute to
determine what the Legislature actually intended to be the scope of the knowledge
element. Section 26100, subdivision (a) is a reenactment of former section 12034.
Former section 12034 was enacted by Senate Bill No. 811 in 1977. Senate Bill No. 811

                                               9
was intended to “discourage shooting from and between vehicles.” (Sen. Democratic
Caucus, analysis of Sen. Bill No. 811 (1977-1978 Reg. Sess.) as amended June 15, 1977.)
As originally introduced, it would have applied only to the owner of the vehicle and only
if the owner “permit[ted] any person to use, operate, or occupy such motor vehicle with
the owner’s actual knowledge that such person will unlawfully possess a firearm in such
motor vehicle in violation of Section 12031 . . . .” (Sen. Bill No. 811 (1977-1978 Reg.
Sess.) as introduced on April 1, 1977.) The Legislative Counsel’s digest described the
original version’s knowledge element as “actual knowledge that such person will
unlawfully possess a loaded firearm in such vehicle . . . .” (Ibid.)
       On May 12, 1977, Senate Bill No. 811 was amended so that it extended to not
only owners but also drivers. This amendment also extended the prohibition to instances
where the owner or driver himself or herself carried the firearm into the vehicle and
revised the wording of the prohibition to the “knowingly to permit” language that was
ultimately enacted. (Sen. Bill No. 811 (1977-1978 Reg. Sess.) as amended
May 12, 1977.) The Legislative Counsel’s digest of this amended version simply
repeated the proposed statutory language. (Ibid.) Senate Bill No. 811 was again
amended on May 25, 1977 to remove the portion of the wording added by the May 12
amendment that applied the prohibition to an owner or driver himself or herself carrying
the firearm into the vehicle. (Sen. Bill No. 811 (1977-1978 Reg. Sess.) as amended
                                                                                          6
May 25, 1977.) There were no further substantive amendments to Senate Bill No. 811.
       An Assembly committee bill analysis of the final version of Senate Bill No. 811
described the proposed statute as making it a “misdemeanor for the driver or owner of a
vehicle . . . to knowingly permit any other person to carry or bring into a vehicle a loaded



6
      The final amendment of the bill was limited to whether it required an
appropriation. (Sen. Bill No. 811 (1977-1978 Reg. Sess.) as amended June 15, 1977.)


                                             10
firearm . . . .” (Assem. Com. on Criminal Justice, Rep. on Sen. Bill No. 811 (1977-1978
Reg. Sess.) as amended June 15, 1977, original underscoring.) It also said: “Whether
this bill is capable of enforcement will in large part depend on the interpretation of the
term ‘permit.’ It may mean that the driver or owner has an absolute duty to prevent, in
which case an owner will be liable if he has knowledge that someone possesses a weapon
in his or her vehicle. If it means, with his or her consent, then this statute may not be
capable of enforcement since the defendant could always plead that they objected but
were unable to prevent the passenger or user of the vehicle from bringing the weapon into
the vehicle.” (Ibid.) And it stated: “Essentially this bill makes the owner or driver of a
vehicle criminally liable for permitting someone else to violate a law. Is this a form of
vicarious liability?” (Ibid., original underscoring.)
       The Senate Republican Caucus’s analysis of the final version of the bill described
it as making it a misdemeanor for a driver or owner “knowingly to permit any person to
bring unlawfully a loaded firearm into the vehicle . . . .” (Sen. Republican Caucus, 3d
reading analysis of Sen. Bill No. 811 (1977-1978 Reg. Sess.) June 1, 1977.) Two
                                                                        7
enrolled bill reports characterized the proposed law in different ways. One said: “Strict
liability on the owner or driver will not be imposed by this bill. The owner must
‘knowingly permit’ the firearm in the vehicle before criminal sanctions can be imposed.
This is perhaps imposing vicarious liability on the driver or owner for permitting


7
         An enrolled bill report is properly considered as part of the bill’s legislative
history because it is “likely to reflect the understanding of the Legislature that enacted the
statute . . . particularly because it is written by a governmental department charged with
informing the Governor about the bill so that he can decide whether to sign it, thereby
completing the legislative process. Although these reports certainly do not take
precedence over more direct windows into legislative intent such as committee analyses,
and cannot be used to alter the substance of legislation, they may be as here ‘instructive’
in filling out the picture of the Legislature’s purpose.” (In re Conservatorship of Whitley
(2010) 50 Cal.4th 1206, 1218, fn. 3.)


                                             11
someone else to violate the law.” (Legal Affairs Dept., Enrolled Bill Rep. on Sen. Bill
No. 811 (1977-1978 Reg. Sess.) Aug. 30, 1977.) Another enrolled bill report
characterized the bill as applying to persons who have passengers “knowing that [the
passengers] possessed loaded [firearms] . . . .” (Dept. of Fish & Game, Enrolled Bill
Rep. on Sen. Bill No. 811 (1977-1978 Reg. Sess.) August 25, 1977.)
       This evidence of the Legislature’s intent establishes that it understood that the
proposed statute would require knowledge that the firearm was loaded. The Legislative
Counsel’s digest of the original version of the statute stated as much. There is no
indication in the legislative history that the amendment of the statute was intended to
reduce the scope of the knowledge element. Indeed, the evidence is to the contrary. The
Assembly committee analysis, the Republican caucus analysis, and the enrolled bill
report from the Department of Fish and Game each characterized the final enacted
version of the bill as requiring that the owner/driver know that the passenger has a
“loaded” firearm.
       In Ramon A., the First District found the legislative history of Senate Bill No. 811
to be “equivocal” on this point. (Ramon A., supra, 40 Cal.App.4th at p. 939.) It relied
heavily on a letter to the Governor from the author of Senate Bill No. 811 and references
in committee reports about other bills proposing unrelated amendments a decade later.
This reliance was erroneous. A letter to the Governor from the author of a bill is not
evidence of the Legislature’s intent because “ ‘no guarantee can issue that those who
supported his proposal shared his view of its compass.’ ” (California Teachers Assn. v.
San Diego Community College Dist. (1981) 28 Cal.3d 692, 700.) Committee reports
about subsequent bills involving unrelated amendments, while not entirely irrelevant,
may not be utilized to rebut evidence of the Legislature’s actual intent at the time it
enacted a statute. “Although a legislative expression of the intent of an earlier act is not
binding upon the courts in their construction of the prior act, that expression may
properly be considered together with other factors in arriving at the true legislative intent

                                             12
existing when the prior act was passed.” (Eu v. Chacon (1976) 16 Cal.3d 465, 470;
accord Cummins, Inc. v. Superior Court (2005) 36 Cal.4th 478, 492.) The Legislature’s
expressions of its intent at the time it passes a bill cannot be rebutted by subsequent
statements by a different Legislature about its retrospective understanding of the nature of
the previous enactment. The First District’s legislative history analysis in Ramon A.
reached an incorrect conclusion because it relied on improper sources, rather than on the
actual evidence of the Legislature’s intent when it enacted this statute.
       The First District also erred in Ramon A. in concluding that the rule of lenity was
inapplicable. “ ‘[T]hat rule generally requires that “ambiguity in a criminal statute should
be resolved in favor of lenity, giving the defendant the benefit of every reasonable doubt
on questions of interpretation. But . . . ‘that rule applies “only if two reasonable
interpretations of the statute stand in relative equipoise.” [Citation.]’ [Citations.]”
[Citations.]’ [Citation.] ‘The rule of lenity does not apply every time there are two or
more reasonable interpretations of a penal statute. [Citation.] Rather, the rule applies
“ ‘only if the court can do no more than guess what the legislative body intended; there
must be an egregious ambiguity and uncertainty to justify invoking the rule.’ ”
[Citation.]’ ” (People v. Nuckles (2013) 56 Cal.4th 601, 611.)
       The First District in Ramon A. rejected application of the rule of lenity on the
ground that “there can be no doubt” that the purpose of Senate Bill No. 811 “would be
thwarted” if the knowledge element’s scope extended to the fact that the firearm was
loaded. (Ramon A., supra, 40 Cal.App.4th at p. 941.) Not so. The purpose of the statute
was to discourage shootings from vehicles by a limited extension of criminal liability to
the owner/driver of a vehicle in which a loaded firearm is carried by a passenger. The
ambiguity concerns whether the Legislature intended for criminal liability to extend to
any owner/driver who knew a passenger had a firearm or wished to limit it to only those
who knew their passenger’s firearm was loaded. The legislative history strongly supports



                                              13
a conclusion that the Legislature actually intended to limit criminal liability to only those
owners/drivers who knew the firearm was loaded.
       The Legislature had a readily apparent rationale for limiting the prohibition to an
owner/driver who knows the firearm is loaded. An owner/driver who knows only that a
passenger has a firearm, but not that the firearm is loaded, does not act with any criminal
intent since carrying an unloaded firearm in a vehicle is not illegal. The owner/driver is
not knowingly permitting a crime to occur. Extending criminal liability to such an
owner/driver would make anyone who transported a fellow hunter or target shooter
criminally liable if the passenger had failed to unload his or her firearm. The
owner/driver would have no readily available means of avoiding criminal liability other
than requiring every passenger with a firearm to allow the owner/driver to personally
verify that it was unloaded. He or she could not merely ask the passenger if it was loaded
because the passenger might mistakenly or falsely deny that a loaded firearm was loaded.
And the risk of harm to the owner/driver from attempting to physically verify the status
of every passenger’s firearm might well exceed the risks that the statute was intended to
deter as the firearm might inadvertently discharge or another mishap might occur. Nor is
it true that the enforceability of the prohibition would be substantially hindered by a
requirement that the owner/driver know that the firearm is loaded. Only a loaded firearm
poses an immediate danger of a shooting from a vehicle. The ability of the owner/driver
to discourage shootings from his or her vehicle depends on his or her knowledge that a
passenger has a loaded firearm. The prohibition expressly requires that the owner/driver
know that the passenger possesses a firearm. The same type of proof that is used to
establish that the owner/driver was aware of the presence of the firearm, which may be
circumstantial evidence, will often be enough to establish that the owner/driver was also
aware of the loaded status of the firearm.
       Section 26100, subdivision (a) contains an express knowledge requirement. But
even where a statute does not contain an express knowledge requirement, the California

                                             14
Supreme Court has continued after Jorge to find that knowledge of the characteristics
that made possession of an item illegal is required. In 2006, the California Supreme
Court considered whether former section 12020, which prohibited the possession of a
short-barreled rifle, required proof of the possessor’s knowledge of the nature of the
weapon. The court concluded that it did. “It is highly unlikely that the Legislature
intended that a person possessing an item listed in section 12020(a)(1) for its lawful,
utilitarian purpose, but unaware of the characteristic that makes possession of the item
illegal, would nevertheless be guilty of violating section 12020(a)(1).” (People v. King
(2006) 38 Cal.4th 617, 626.) The court noted that “even sawed-off rifles have a lawful
purpose, in certain limited circumstances . . . .” (King, at p. 626.) Requiring proof of
actual knowledge “would not impose an unduly heavy burden on the prosecution,
because . . . proving a defendant’s knowledge of a short-barreled rifle’s illegal
characteristic generally will not be too difficult a task.” (King, at p. 627.) “A person
possessing a short-barreled rifle, and having actually observed the weapon, necessarily
knows of its shortness, and thus knows its illegal characteristic, whether or not the person
knows how many inches long the weapon is.” (King, at pp. 627-628.)
       The California Supreme Court has not retreated from its insistence that criminal
statutes generally require knowledge of the facts that make the conduct illegal. “A
defendant must know the facts that affect the material nature of his [or her] conduct, that
is, the facts that must be proven to show his [or her] act is the kind of conduct proscribed
by the statute.” (Stark, supra, 52 Cal.4th at p. 397.) Here, the owner/driver’s conduct is
proscribed only if the firearm is loaded. We hold that section 26100, subdivision (a)
requires proof that the owner/driver knew the facts that made his or her conduct illegal,
including that the passenger’s firearm was loaded.
       Defendant claims that his conviction must be reversed because the prosecution
failed to present substantial evidence at trial that he knew the firearm was loaded. We
disagree. “Evidence of a defendant’s state of mind is almost inevitably circumstantial,

                                             15
but circumstantial evidence is as sufficient as direct evidence to support a conviction.”
(People v. Bloom (1989) 48 Cal.3d 1194, 1208.) Defendant and his two passengers were
fellow members of a criminal street gang, and defendant knew that one of his passengers
was carrying a concealed firearm. A gang expert testified at trial that the primary
activities of defendant’s gang are “[c]arrying concealed firearms, murders, homicides,
[and] shooting into inhabited dwellings.” He also testified that members of this gang
frequently carry guns in vehicles for the purpose of committing crimes. A reasonable
jury could have concluded from this evidence that defendant knew that his fellow gang
member would not carry a concealed firearm unless it was loaded since the primary
purposes to which his fellow gang members put firearms required that those firearms be
loaded.
       Defendant also contends that the trial court prejudicially erred in failing to instruct
the jury that the prosecution was required to prove that he knew the firearm was loaded.
The Attorney General’s only response to this contention is to repeat her claim that the
scope of the knowledge element was limited to knowledge of the firearm’s presence. The
trial court’s instructions completely omitted the aspect of the knowledge element that
required proof that defendant knew the firearm was loaded. An instructional error
omitting an element of an offense requires reversal unless the prosecution demonstrates
that the error was harmless beyond a reasonable doubt. (People v. Flood (1998) 18
Cal.4th 470, 504.) The Attorney General does not attempt to do so. Nor could she. In
this case, the evidence that defendant knew that John Doe One’s firearm was loaded was
circumstantial. The prosecution did not present any evidence that defendant had even
seen the firearm or that John Doe One or anyone else had told defendant that it was
loaded. Had the jury been informed that a conviction required proof beyond a reasonable
doubt that defendant knew the firearm was loaded, the jury might have entertained a
reasonable doubt as to whether it could reasonably infer that defendant had such



                                             16
knowledge. Hence, the error was not harmless beyond a reasonable doubt. We will
therefore remand the matter for a new trial with accurate instructions.


                                     B. Gang Allegation
       Defendant also challenges the sufficiency of the evidence to support the gang
allegation. We reach this contention because, if valid, it would preclude retrial of the
gang allegation.
       The gang allegation required proof that defendant committed the substantive
offense (1) “for the benefit of, at the direction of, or in association with any criminal
street gang,” and (2) “with the specific intent to promote, further, or assist in any criminal
conduct by gang members.” (§ 186.22, subd. (d).) Defendant does not clearly identify
which of these two elements he believes was not established. Instead, he argues:
“Though the two elements of the gang enhancement are distinct, courts analyzing the
sufficiency of the evidence often do not substantially distinguish between them,
effectively considering more generally whether the offense was sufficiently gang-
related.” Defendant proceeds to argue that the evidence did not establish that his conduct
was “gang-related.”
       The primary thrust of defendant’s argument is that the prosecution failed to satisfy
the “ ‘for the benefit of, at the direction of, or in association with’ ” element since the
specific intent element does not require that the offense itself be “gang-related . . . .”
(People v. Albillar (2010) 51 Cal.4th 47, 55-56 (Albillar).) “ ‘[T]he specific intent to
promote, further, or assist in any criminal conduct by gang members’—is unambiguous
and applies to any criminal conduct, without a further requirement that the conduct be
‘apart from’ the criminal conduct underlying the offense of conviction sought to be
enhanced.” (Albillar, at p. 66.) The prosecution need not prove “that the defendant
act[ed] with the specific intent to promote, further, or assist a gang; the statute requires
only the specific intent to promote, further, or assist criminal conduct by gang members.”

                                               17
(Albillar, at p. 67.) To the extent that defendant is challenging the sufficiency of the
evidence to support the specific intent element, his challenge is meritless. The evidence
easily supports a reasonable inference that defendant intended to assist John Doe One, his
fellow gang member, in criminal conduct. Defendant admitted that he agreed to transport
John Doe One in his vehicle knowing that John Doe One was carrying a firearm, and
there was circumstantial evidence that defendant knew the firearm was loaded. Since
John Doe One’s act of carrying a loaded firearm in the vehicle was criminal conduct, a
reasonable jury could infer that defendant intended to assist John Doe One, a fellow gang
member, in this criminal conduct. Such a finding satisfies the specific intent element.
       We proceed to defendant’s claim that there was insufficient evidence that the
substantive offense was committed for the benefit of the gang. Defendant does not
challenge the sufficiency of the evidence to support the gang expert’s testimony that
defendant was a Norteno gang member. Defendant had a history of associating with the
Norteno gang and with Norteno gang members. Defendant’s cell phone demonstrated his
affiliation with his gang. After his arrest, defendant asked to be placed in the jail housing
unit for active Norteno gang members. This evidence was sufficient to show that
defendant was a Norteno gang member.
       Defendant claims that the evidence was insufficient to support the gang expert’s
testimony that the substantive offense was committed for the benefit of the gang. The
gang expert testified at trial that the primary activities of the Norteno gang are “[c]arrying
concealed firearms, murders, homicides, [and] shooting into inhabited dwellings.” He
opined that Norteno gang members “enhance their reputation by committing crimes and
carrying guns. Carrying guns bolsters one’s status amongst the gang, as well as it makes
the gang feel stronger.” The gang expert explained that Norteno gang members
frequently carry guns in vehicles for the purpose of committing crimes. He concluded
that “a Norteno affiliate who allows another gang member to carry a loaded weapon in
the car act[s] for the benefit of, at the direction of or in association with the criminal

                                              18
street gang in order to promote, further or assist in any criminal conduct by other gang
members.” The gist of the expert’s testimony was therefore that the carrying of a gun in
a vehicle by a gang member benefits the gang by “mak[ing] the gang feel stronger” and
facilitating the commission of gang crimes.
       Defendant relies on In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.) to
support his claim that there was insufficient foundation for the gang expert’s testimony.
Frank was stopped by police after he ran a red light on his bicycle. He gave a false name,
and the officer found a concealed knife, a bindle of methamphetamine, and a red bandana
in Frank’s possession. (Frank S., at p. 1195.) Frank admitted that he carried the knife to
protect himself against “ ‘Southerners,’ ” as he was allied with northern street gangs.
(Ibid.) A gang expert was permitted to testify that Frank’s possession of the knife
benefitted the gang because “ ‘it helps provide them protection should they be assaulted
by rival gang members.’ ” (Frank S., at p. 1199.) The Fifth District deemed this
improper because, in its view, the expert opinion was not supported by any other
evidence. “The prosecution did not present any evidence that the minor was in gang
territory, had gang members with him, or had any reason to expect to use the knife in a
gang-related offense.” (Ibid.) Frank S. is readily distinguishable. Here, the substantive
offense involved a group of three fellow gang members who were headed for a known
gang hangout area with a loaded firearm. Their gang’s primary activities revolved
around the use of firearms. This evidence provided sufficient support for the gang
expert’s testimony that the carrying of the loaded firearm was for the benefit of the gang.
       Defendant also relies on People v. Ramon (2009) 175 Cal.App.4th 843. Ramon, a
gang member, was stopped by police in his gang’s territory while driving a stolen truck.
A fellow gang member was his passenger, and an unregistered firearm was found under
the driver’s seat. (Id. at pp. 846-847, 849.) The prosecution’s gang expert testified at
trial that the stolen truck and the unregistered firearm could be used to commit gang
crimes. (Id. at p. 847.) He offered an opinion that possession of a gun and driving of a

                                              19
stolen truck in gang territory therefore benefitted the gang. (Id. at p. 848.) The expert
testified that stolen trucks and firearms were “tools” that the gang needed to commit other
crimes. (Ibid.) The Fifth District concluded that the case could not be “distinguished in a
meaningful manner” from Frank S. and found the expert’s testimony “improper.” (Id. at
p. 851.) “The People’s expert simply informed the jury of how he felt the case should be
resolved. This was an improper opinion and could not provide substantial evidence to
support the jury’s finding. There were no facts from which the expert could discern
whether Ramon and Martinez were acting on their own behalf the night they were
arrested or were acting on behalf of [their gang]. While it is possible the two were acting
for the benefit of the gang, a mere possibility is nothing more than speculation.
Speculation is not substantial evidence.” (Ibid.)
       We find People v. Ramon distinguishable. The gang expert here, unlike the expert
in People v. Ramon, did not premise his opinion solely on his understanding that the
stolen truck and the firearm could be used by the gang to commit crimes. His opinion
had a much more substantial basis. One, defendant’s gang’s primary activities included
carrying firearms and, in fact, revolved around firearms. Two, when the firearm was
found in John Doe One’s possession in defendant’s vehicle, defendant was transporting
both John Doe One and a third member of the same gang to a location where that gang
hung out. Three, the firearm was stolen. The gang expert testified that stolen firearms
are particularly useful to a gang because such firearms cannot be traced back to their
owners. It might be true that individually none of these facts would have been sufficient
to support the expert’s opinion, but the combination of these facts was an adequate
predicate for the gang expert’s opinion that the substantive offense was committed to
benefit defendant’s gang.
       Since the prosecution presented substantial evidence in support of the gang
allegation, it may retry that allegation.



                                             20
                            III. Disposition
The judgment is reversed.




                                  21
                                   _______________________________
                                   Mihara, J.



WE CONCUR:




_____________________________
Bamattre-Manoukian, Acting P. J.




_____________________________
Márquez, J.




                                    22
Trial Court:                                  Monterey County Superior Court


Trial Judge:                                  Honorable Pamela L. Butler


Attorney for Defendant and Appellant:         Patrick McKenna
                                              Under Appointment by the Sixth District
                                              Appellate Program


Attorneys for Plantiff and Respondent:        Kamala D. Harris
                                              Attorney General of California

                                              Dane R. Gillette
                                              Chief Assistant Attorney General

                                              Gerald A. Engler
                                              Senior Assistant Attorney General

                                              Catherine A. Rivlin
                                              Supervising Deputy Attorney General

                                              Allen R. Crown
                                              Deputy Attorney General




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