Filed 3/6/14
                     CERTIFIED FOR PARTIAL PUBLICATION*

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                     DIVISION FIVE


THE PEOPLE,                                       B246670

        Plaintiff and Respondent,                 (Los Angeles County
                                                  Super. Ct. No. SA079419)
        v.

RICHARD GARCIA,

        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of the County of Los Angeles,
Antonio Barreto, Jr., Judge. Affirmed in part, reversed in part, and remanded.
        James Koester, under appointment by the Court of Appeal, for Defendant and
Appellant.
        Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Michael C. Keller and
Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.




*
        Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is
certified for publication with the exception of DISCUSSION, parts B-D.
                                    INTRODUCTION
       Defendant and appellant Richard Garcia (defendant) was convicted of shooting a
firearm in a grossly negligent manner (Pen. Code, § 246.3, subd. (a)1). The jury found
true allegations that defendant personally used a firearm in violation of section 12022.5,
subdivisions (a) and (d), the crime was gang related within the meaning of section
186.22, subdivision (b), and defendant had two prior convictions within the meaning of
section 667.5, subdivision (b).
       We hold that, as defendant contends and the Attorney General concedes,
convictions for the predicate offenses of other gang members were not within three years
of each other as required by the statute. We also hold that because the jury was not
instructed that a predicate offense may be proved by the commission of a crime,
defendant’s alleged commission of a crime cannot serve as a predicate offense for the
gang enhancement; and criminal offenses for which defendant was charged, but
acquitted, cannot serve as the basis for predicate offenses under section 186.22,
subdivision (e). We therefore reverse the true finding on the gang enhancement
allegation; and apart from certain sentencing errors discussed in the unpublished portion
of this opinion, we otherwise affirm the judgment of conviction.


                         PROCEDURAL BACKGROUND2
       Following trial, the jury found defendant guilty on count 4, shooting a firearm in a
grossly negligent manner in violation of section 246.3, subdivision (a). The jury found
true the allegations that defendant personally used a firearm, to wit, a semi-automatic
firearm in violation of section 12022.5, subdivisions (a) and (d), and that the crime was
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


1
       All statutory citations are to the Penal Code.
2
      Except as discussed below, defendant does not challenge the factual basis for his
conviction. We therefore do not set forth the facts.

                                              2
members within the meaning of section 186.22, subdivision (b)(1)(A) through (C). The
jury found defendant not guilty of the remaining three counts—counts 1 through 3—each
for assault with a semi-automatic firearm in violation of section 245, subdivision (b). In
a bifurcated proceeding, the jury found true the allegation that defendant suffered two
prior convictions for felony vandalism (§ 594, subd. (a)) within the meaning of section
667.5, subdivision (b).
       The trial court denied probation and sentenced defendant to state prison for a term
of nine years, consisting of the upper term of three years on count 4; five years pursuant
to section 186.22, subdivision (b)(1)(A) through (C); and one year for one of his prior
convictions under section 667.5, subdivision (b). Pursuant to section 654, the trial court
stayed the sentence imposed on the other prior convictions and the firearm use
enhancement. The trial court ordered defendant to pay various fines and assessments and
awarded defendant 840 days of custody credit consisting of 420 days of actual custody
credit and 420 days of conduct credit.


                                      DISCUSSION


       A.     Lack of Substantial Evidence in Support of the Gang Enhancement
       There was evidence, video and eye witnesses, that defendant fired a weapon in the
direction of rival gang members. Defendant contends that there was insufficient evidence
to prove that he committed the crime for which he was convicted with the specific intent
to promote, further, or assist in any criminal conduct by gang members. Defendant
argues that the prosecution failed to produce evidence that two or more members of the
“Lil Watts” gang, of which he allegedly was a member, had been convicted of any of the
enumerated felonies within a three-year period of each other, as required under section
186.22, subdivision (e). Defendant also argues that jury’s true finding regarding the gang
enhancement could not be supported by proof of the “commission” of one or more of
alleged predicate offenses because the jury was instructed only that the person must have
been “convicted” of the offense.

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               1.     Standard of Review and Applicable Law
         Defendant challenges the sufficiency of the evidence to support the jury’s gang
enhancement finding. Our Supreme Court has held, “‘In considering a challenge to the
sufficiency of the evidence to support an enhancement, we review the entire record in the
light most favorable to the judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
[Citation.] We presume every fact in support of the judgment the trier of fact could have
reasonably deduced from the evidence. [Citation.] If the circumstances reasonably
justify the trier of fact’s findings, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled with a contrary finding.
[Citation.] “A reviewing court neither reweighs evidence nor reevaluates a witness’s
credibility.” [Citation.]’ [Citation.]” (People v. Livingston (2012) 53 Cal.4th 1145,
1170.) The relevant facts must, however, meet the statutory requirements for a gang
enhancement in order for it to apply. (See People v. Godinez (1993) 17 Cal.App.4th
1363, 1370, disapproved on another ground in People v Russo (2001) 25 Cal.4th 1124,
1134.)
         Section 186.22, subdivision (b)(1) provides for a sentence enhancement for “any
person who is convicted of a felony committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent to promote, further, or
assist in any criminal conduct by gang members . . . .” A “‘criminal street gang’ means
any ongoing organization, association, or group of three or more persons, whether formal
or informal, having as one of its primary activities the commission of one or more of the
criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of
subdivision (e), having a common name or common identifying sign or symbol, and
whose members individually or collectively engage in or have engaged in a pattern of
criminal gang activity.” (§ 186.22, subd. (f).) Section 186.22, subdivision (e) defines a
“pattern of criminal gang activity” as “the commission of, attempted commission of,
conspiracy to commit, or solicitation of, sustained juvenile petition for, or

                                              4
conviction of two or more of the [offenses enumerated in subdivision (e)], provided at
least one of these offenses occurred after the effective date of this chapter and the last of
those offenses occurred within three years after a prior offense, and the offenses were
committed on separate occasions, or by two or more persons.”


               2.     Background Facts
        Hawthorne Police Department Detective Keith Chaffin, the prosecution’s gang
expert, testified that defendant had admitted to being a Lil Watts gang member on several
prior occasions, had numerous tattoos consistent with membership in the Lil Watts gang,
and that defendant’s gang moniker was “Sharkey.” Detective Chaffin opined that
defendant was a member of the Lil Watts gang. Detective Chaffin testified as to the Lil
Watts gang’s territory, primary activities, and general gang culture.
        Detective Chaffin testified that Nicolas Rendon and Christopher Delfosse also
were known Lil Watts gang members. The trial court admitted certified records into
evidence showing that on October 26, 2009, Rendon was convicted of, inter alia, one
count of possession of a firearm (§ 12021, subd. (a)(1)), for a criminal act that he
committed on July 30, 2009. The trial court also admitted into evidence certified records
showing that between September and October 2005,3 Delfosse was convicted of assault
with a firearm (§ 245, subd. (a)(1)), for a criminal act that he committed on April 29,
2004.


               3.     Analysis
        Section 186.22, subdivision (e) provides that a pattern of criminal gang activity is
“the commission of, attempted commission of, conspiracy to commit, or solicitation of,
sustained juvenile petition for, or conviction of two or more of the” offenses enumerated
in subdivision (e). Because section 186.22, subdivision (e) contains both the options of
“commission” or “conviction,” the statute expressly does not require that the offense

3
      The page of the certified record relating to Delfosse showing the exact date of his
conviction is not in the record.

                                              5
necessarily result in a conviction. (In re Leland D. (1990) 223 Cal.App.3d 251, 258
[“Although the statute does not require proof of convictions, it does require proof that the
offenses were committed”]; In re I.M. (2005) 125 Cal.App.4th 1195, 1207-1208
[evidence that a gang member was prosecuted for an offense, without a showing that he
was convicted, was sufficient evidence of “commission” of predicate offense for pattern
of criminal gang activity].)
       The trial court instructed the jury with a modified version of CALCRIM No. 1401
concerning whether a crime was committed for the benefit of a criminal street gang. That
jury instruction as written, however, did not state that the predicate offenses may be
proven merely by evidence of the “commission” of one or more of those offenses.
Instead, the jury instruction stated that, “A pattern of criminal gang activity, as used here,
means: [¶] [the] conviction of: [¶] [A]ny combination of two or more of the following
crimes: Assault with a deadly weapon (Penal Code Section 245) and prohibited
possession of a firearm (Penal Code Section 12021).” The trial court deleted the
alternative language in CALCRIM 1401 (as set forth in section 186.22, subdivision (e))
that the jury may consider the commission of, attempted commission of, conspiracy to
commit, or solicitation to commit the predicate offenses.
       The trial court’s oral reading to the jury of revised CALCRIM No. 1401 differed
slightly from the revised written version of CALCRIM No. 1401. The trial court did not
state that there must have been a conviction of the predicate offenses. The trial court
stated, “The term, ‘pattern of criminal gang activity,’ used herein means” any two or
more of the predicate crimes. Arguably, the mere “commission” of these crimes would
be sufficient under the trial court’s oral reading of the jury instruction. However, “‘[t]o
the extent a discrepancy exists between the written and oral versions of jury instructions,
the written instructions provided to the jury will control.’ [Citation.]” (People v. Mills
(2010) 48 Cal.4th 158, 201.) Thus, the trial court erroneously instructed the jury that a
conviction was necessary to establish a predicate offense.
       The Attorney General agrees with defendant that Delfosse’s 2005 conviction and
Rendon’s 2009 conviction were not, as is required by section 186.22, subdivision (e),

                                              6
within three years of each other to establish a pattern of criminal gang activity. The
Attorney General contends, however, that there is substantial evidence that in November
2011, defendant committed the three charged offenses on which he was acquitted in
November, 2012—assault with a semi-automatic firearm (§ 245, subd. (b); counts 1-3)—
and that his commission of those offenses could be used in conjunction with Rendon’s
commission of the offense leading to his 2009 conviction to satisfy the predicate offenses
requirement under section 186.22, subdivision (e). We disagree with the Attorney
General.
       The jury was not instructed that the predicate offenses could be proved merely by
evidence of the “commission” of one of more of those offenses. That is, the element of
the “commission” of a predicate crime was not presented to the jury. Defendant’s
purported commission of a crime, therefore, 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). (People v. Kunkin (1973) 9 Cal.3d 245, 251 [“We, of course,
cannot look to legal theories not before the jury in seeking to reconcile a jury verdict with
the substantial evidence rule”]; People v. Smith (1984) 155 Cal.App.3d 1103, 1145 [“It
would deprive the defendant of his right to a jury trial if an appellate court could [affirm a
conviction] on a theory not presented to the jury”].)
       Even had the trial court instructed the jury that the predicate offenses could be
proven by the “commission” of one or more of those crimes, there is not substantial
evidence to support a finding that defendant committed assault with a semi-automatic
firearm (§ 245, subd. (b)) for purposes of constituting one or more predicate offenses
under section 186.22, subdivision (e). As noted above, “‘In considering a challenge to
the sufficiency of the evidence to support an enhancement, we review the entire record in
the light most favorable to the judgment to determine whether it contains substantial
evidence . . . from which a reasonable trier of fact could find the defendant guilty beyond
a reasonable doubt. [Citation.]’” (People v. Livingston, supra, 53 Cal.4th at p. 1170;
People v. Martinez (2008) 158 Cal.App.4th 1324, 1329 [specifically applying the
substantial evidence test to a contention that a section 186.22, subdivision (b) gang

                                              7
enhancement was unsupported by the evidence].) The jury here, having found that one of
more of the essential elements of the offenses charged as counts 1 through 3
was not proved beyond a reasonable doubt,4 acquitted defendant. The offenses for which
defendant was acquitted were the very offenses for which the Attorney General contends
constitutes substantial evidence to support a finding that defendant committed a predicate
offense for purposes of section 186.22, subdivision (e): assault with a semi-automatic
firearm in violation of section 245, subdivision (b). There is no evidence that the
legislature intended that a criminal offense on which a defendant was charged, but
acquitted, may serve as a predicate offense under section 186.22, subdivision (e).
       Although evidence that a gang member had been prosecuted for an offense,
without a showing that he was convicted, may be sufficient evidence of “commission” of
predicate offense for purposes of section 186.22, subdivision (e) (In re I.M., supra, 125
Cal.App.4th at pp. 1207-1208), here the jury acquitted defendant of committing the
offenses of assault with a semi-automatic firearm in violation of section 245, subdivision
(b). Because defendant was acquitted of the three counts of assault with a semi-
automatic firearm, there is not substantial evidence of the commission of those offenses
for purposes of establishing predicate offenses under section 186.22, subdivision (e).5
       The Attorney General also contends that defendant was “convicted” of shooting a
firearm in a grossly negligent manner and that conviction qualifies as one of the predicate
offenses under section 186.22, subdivision (e)(23). The Attorney General is incorrect.
       At the time defendant committed the charged offenses in this case, section 186.22,
subdivision (e)(23) described the offense of “[p]ossession of a pistol, revolver, or other
firearm capable of being concealed upon the person in violation of paragraph (1) of

4
       The trial court instructed the jury as to all counts on self-defense. ~(RT 2241-
2244; CT 293-297)~ The jury found defendant guilty on count 4, thereby suggesting that
the jury did not acquit defendant on counts 1 through 3 based upon a self-defense theory.
5
       We do not have to address any constitutional issues that could arise if the charged
offenses for which defendant was acquitted may serve as predicate offenses under section
186.22, subdivision (e), including whether defendant would be subject to double jeopardy
or whether his due process rights would be violated.

                                             8
subdivision (a) of Section 12101.” Section 12101, subdivision (a)(1) provided that a
“minor” could not possess a pistol, revolver, or other firearm capable of being concealed
upon one’s person. There is no evidence in the record that defendant was a minor. There
is no evidence in the record therefore that defendant came within the provisions of
section 12101, subdivision (a)(1), so as to be covered by section 186.22, subdivision
(e)(23).
       Also, the trial court instructed the jury that the offenses on which the gang
members must have been convicted in order to prove the pattern of criminal gang activity
were assault with a deadly weapon (§ 245) and possession of a firearm (§ 12021). It did
not instruct the jury that a conviction for shooting a firearm in a grossly negligent manner
in violation of section 246.3, subdivision (a) could be considered in proving a pattern of
criminal gang activity.
       Accordingly, there was insufficient evidence to support the gang enhancement.
This conclusion is the equivalent of an “acquittal.” Defendant, therefore, may not be
retried on the gang enhancement. (See People v. Seel (2004) 34 Cal.4th 535, 545-550.)


       B.     Applicability of Section 654 to Defendant’s Gang Enhancement
              Sentence.
       Defendant contends that section 654 bars punishment on the section 186.22,
subdivision (b), gang enhancement. Because we hold that there was insufficient evidence
to prove the gang enhancement, we do not reach this contention.


       C.     Firearm Enhancement
       Defendant contends, and the Attorney General agrees, that the trial court should
have struck the firearm use enhancement. We agree.
       As to defendant’s conviction for discharging a firearm in a grossly negligent
manner in violation of section 246.3 (count 4), the jurors found true the special allegation
that during the commission of the offense he personally used a firearm within the
meaning of section 12022.5. The trial court sentenced defendant to state prison for a

                                             9
term of three years on count 4, and imposed and stayed sentence on the firearm use
enhancement.
       The firearm use enhancement under section 12022.5, subdivision (a) provides for
additional punishment for personal use of a firearm in the commission of a felony unless
“firearm use is an element of the underlying offense” of which the defendant was
convicted. (See People v. Kramer (2002) 29 Cal.4th 720, 723, fn. 2; People v. Allums
(1975) 47 Cal.App.3d 654, 659, disapproved on other grounds in People v. Wheeler
(1978) 22 Cal.3d 258, 286, fn. 35.) “The phrase ‘element of the offense’ signifies an
essential component of the legal definition of the crime, considered in the abstract.
[Citation.]” (People v. Hansen (1994) 9 Cal.4th 300, 317, overruled on other grounds in
People v. Chun (2009) 45 Cal.4th 1172, 1199.) Use of a firearm is an element of a
violation of section 246.3 because that section punishes anyone who “willfully discharges
a firearm in a grossly negligent manner . . . .” (See People v. Leslie (1996) 47
Cal.App.4th 198, 202-203 [acknowledging that use of a firearm was an element of the
section 246.3 offense].)
       The trial court therefore erred in imposing and staying the firearm use
enhancement under section 12022.5. We order that the enhancement be stricken.


       D.      Section 667.5 Enhancement
       Defendant contends, and the Attorney General agrees, that the trial court
improperly stayed defendant’s one-year prior prison term enhancement for case number
NA076159, pursuant to section 667.5, subdivision (b), and instead it should have stricken
it. We order that the prior prison term enhancement be stricken.
       The District Attorney of Los Angeles County filed an information alleging that
defendant had suffered two prior convictions and prison commitments, within the
meaning of section 667.5, subdivision (b), in court case numbers NA076159 and
YA075197. The prosecution introduced certified copies of defendant’s prison record to
prove the allegations. The records stated that defendant had been sentenced to state
prison in both court cases—numbers NA076159 and YA075197. The records, however,

                                             10
stated that the prison terms for both cases were ordered to be served concurrently. The
jury found true the special allegations. The trial court sentenced defendant to state prison
for a term of one year for the prison commitment concerning case number YA075197
case, and stayed the one-year enhancement sentence concerning case number NA076159.
       “Once the prior prison term is found true within the meaning of section 667.5(b),
the trial court may not stay the one-year enhancement, which is mandatory unless
stricken. [Citations.]” (People v. Langston (2004) 33 Cal.4th 1237, 1241.) Only one
prior prison term enhancement, however, is proper when concurrent or consecutive
sentences have been imposed in two or more prior felony cases and the defendant has
served one continuous period of confinement for those offenses. (Id.; People v. Jones
(1998) 63 Cal.App.4th 744, 747.)
       The trial court therefore erred in imposing and staying, and not striking,
defendant’s one-year prior prison term enhancement pursuant to section 667.5,
subdivision (b) for case number NA076159. We order that the section 667.5, subdivision
(b) prior prison term enhancement, enforcement of which had been stayed, be stricken.




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                                      DISPOSITION
       The true finding on the gang enhancement allegation is reversed. The section
12022.5 firearm enhancement and the section 667.5 enhancement arising from case
number NA076159 are ordered stricken. The abstract of judgment is ordered modified to
reflect these changes. The superior court clerk is instructed to prepare the amended
abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
In all other respects, the judgment of conviction is affirmed.
       CERTIFIED FOR PARTIAL PUBLICATION


                                                  MOSK, J.



We concur:



              TURNER, P. J.



              MINK, J.





      Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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