Filed 1/30/14 P. v. Keeton CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064723
         Plaintiff and Respondent,
                                                                         (Kern Super. Ct. No. BF136484A)
                   v.

JERMALE KEETON,                                                                          OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Colette M.
Humphrey, Judge.
         Catherine White, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Larenda
R. Delaini, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                            FACTS
CHARGES
       Defendant Jermale Keeton (defendant) was charged with solicitation to commit
murder (count I - § 653f, subd. (b)1) and active participation in a criminal street gang
(count II - § 186.22, subd. (a)). The amended information alleged defendant committed
the murder solicitation for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)
The amended information further alleged defendant has previously been convicted of a
felony as defined in sections 667, subdivisions (c)-(j) and 1170.12, subdivisions (a)-(e),
and previously served two prior prison terms (§ 667.5, subd. (b).)
TRIAL EVIDENCE
       Witness David Strickland testified that he had been a member of the Country Boy
Crips gang from ages 14 to 20. Strickland had suffered juvenile adjudications for petty
theft, grand theft auto, participation in a criminal street gang and receiving stolen
property.
       In October 2010, Officer Ryan Kroeker searched Strickland’s car and discovered
marijuana. Officer Kroeker asked Strickland if he would be willing to provide
“information” in exchange for leniency. The two entered into a written agreement.
Initially, Strickland was to help Officer Kroeker with four cases. Strickland satisfied this
initial obligation, but continued to work with Officer Kroeker. According to Officer
Kroeker, Strickland would provide information leading to arrests or seizures and would
be paid “as much as $150” or “as little as $50.”
       On the afternoon of April 8, 2011, defendant called Strickland. Defendant asked
whether Strickland had been “hanging around my homeboy Nathaniel [Johnson].”
Strickland responded affirmatively, and said he spent time with him every day.
Defendant said he was trying to find Johnson, but did not say why.

       1   All further statutory references are to the Penal Code unless otherwise stated.



                                               2.
       Approximately one hour after the first call, defendant again called Strickland. He
asked Strickland whether he “got in touch with” Johnson. Strickland replied, “ ‘Yeah.
I’m right here with him right now.’ ” Defendant said he wanted to talk with Johnson.
While the phone was in speakerphone mode, Strickland gave the phone to Johnson.
Johnson took the phone off of speakerphone mode and walked away from Strickland.
Approximately four minutes later, Johnson gave the phone back to Strickland.
       Strickland then called defendant to learn what Johnson and defendant had
discussed. Defendant told Strickland that Johnson “was no good, that he was a snitch.”
Defendant said Johnson had “basically admitted” being a snitch on the phone.
       Defendant told Strickland to meet him around the corner from Johnson’s house in
20 minutes. When Strickland arrived at the location, defendant was already there in his
car. The car was a sanded-down Cutlass with no license plates. Defendant told
Strickland that he had spoken to “a couple older homies from my hood, from the
Country, and that they said it was a go basically on [Johnson].” Strickland understood
that defendant was going to kill Johnson.
       Defendant asked Strickland to help. Defendant told Strickland to bring Johnson to
“the Country,” meaning the area where the Country Boy Crips live. After the
conversation ended, Strickland walked away and called Officer Kroeker. Strickland then
met with Officer Kroeker in his car. At Officer Kroeker’s direction, Strickland placed
another call to defendant. Strickland “believe[s]” he asked defendant whether “he was
sure he got the big homie’s okay ….” Defendant said, “[Y]eah,” and that he would call
him back.
       Strickland went back to Johnson’s house. Strickland told Johnson that “the word
out there in the Country is that they want to kill you because you’re a snitch.”
       That night, Officer Kroeker brought Strickland to the police department. Officer
Kroeker gave Strickland a phone with which to call defendant. Officer Kroeker said he
would record the calls.

                                             3.
       Defendant said he “got the okay from the older homies….” Defendant told
Strickland to bring Johnson “to that spot on Melwood.” Defendant said he would walk
up to their car, say something to Johnson and shoot him. Defendant said he would then
give Strickland the gun and have someone pick it up later.
       Defendant told Strickland he was going to Shellmacher Street to get a gun.
Officer Charles Sherman was assigned to respond to Shellmacher Street in an undercover
vehicle, follow defendant and have him stopped by a marked patrol unit. It was dark
when Officer Sherman arrived at the 3500 block of Shellmacher Street. As he was
driving south on Shellmacher, Officer Sherman noticed a parked vehicle. He saw a
person he believed to be defendant in the driver’s seat. After three or four minutes,
defendant began to drive his vehicle south, make a U-turn, then drive north. Officer
Sherman followed defendant for a mile and a half where other officers initiated a traffic
stop. After the stop, Officer Sherman confirmed the driver was defendant. Officer Louis
Wood searched the vehicle and did not locate any firearms. Defendant was arrested.
JURY INSTRUCTIONS
       The court instructed the jury on count II (§ 186.22, subd. (a)) as follows:

               “The defendant is charged in Count 2 with participating in a criminal
       street gang in violation of Penal Code section 186.22(A).

              “To prove that the defendant is guilty of this crime, the People must
       prove that: One, the defendant actively participated in a criminal street
       gang; two, when the defendant participated in the gang, he knew that
       members of the gang engaged in or have engaged in a pattern of criminal
       gang activity; and, three, the defendant willfully assisted, furthered or
       promoted felonious criminal conduct by members of the gang by directly
       and actively committing a felony offense.

              “Elements 1 and 2 have been proven by stipulation. In order to find
       the defendant guilty of this offense, you must find Element 3 to be true
       beyond a reasonable doubt.

              “Active participation means involvement with a criminal street gang
       in a way that is more than passive or in name only.


                                             4.
             “As the term is used here, a willful act is one done willingly or on
       purpose.

             “Felonious criminal conduct means committing or attempting to
       commit the following crime: Solicitation of murder in violation of Penal
       Code Section 653F(B).

               “To decide whether a member of the gang or the defendant
       committed solicitation of murder in violation of Penal Code Section
       653F(B), please refer to the separate instructions that I have given you on
       that crime.” (Italics added.)
       The instructions then proceeded to describe a separate enhancement.
       The jury was also instructed on the elements of solicitation and murder. As further
discussed below, the jury received no instruction on the elements of attempt or attempted
solicitation.
JURY DELIBERATION PHASE
       On December 15, 2011, the jury sent a note stating they had agreed on a verdict
for count II (active gang participation), but could not come to an agreement on count I
(solicitation). The court called the jury into the court room. The foreman explained that
the most recent vote was 11 to 1. The court asked the foreperson whether there were any
specific concerns which, if resolved, might assist the jury. The foreperson indicated that
a “definition of terms” might help. The court had the jurors resume deliberations and
instructed them to “write any and all concerns that you might have that will assist each of
you in deliberations on a note….”
       The jury then sent a note asking several questions, including the following: “ ‘Can
the verdict of Count 2 be different than Count 1[?]’ ” 2 Outside the presence of the jury,
the court and counsel discussed the proper response to the question. The court indicated
it would respond to the jury’s question by saying: “The verdict or decision for Count 1
and the verdict or decision for Count 2 are decisions for you to make. Period….”

       2   The jury also asked for a “legal definition of solicit.”



                                                5.
Defense counsel requested a different answer to the question, saying: “Not guilty on
[count] one, they have to be not guilty on [count] 2 based on the way it was argued. I
submitted that. It’s our request as to [the court’s response to] Question 2.”
       When the jury was called into the courtroom, the court answered the question as
follows: “Regarding Question 2, ‘Can the verdict of Count 2 be different than Count 1?’
The verdict or decision for Count 1 and the verdict or decision for Count 2 are decisions
for you to make. That’s it.”
VERDICT AND FINDINGS
       The jury convicted defendant of active participation in a criminal street gang, but
was unable to reach a verdict on solicitation. The court declared a mistrial as to the
solicitation count. The trial court found the prior conviction and prior prison term
allegations as to count II to be true.
POSTVERDICT
       The court declared a mistrial as to count I because the jury was unable to reach a
verdict.
       Defendant moved for a new trial on the grounds that the guilty verdict on count II
was not supported by substantial evidence. The trial court denied the motion. The court
said that if one or more of the jurors believed that defendant had not committed
solicitation but had committed attempted solicitation, then “one can be found guilty of
Count 2 and not guilty of Count1. For those reasons, the Court has come to an
understanding as to what the jury believed when they reached a decision in one count and
were unable to reach the decision in another count.”
       The court sentenced defendant to a prison term of 11 years.3


       3 At sentencing, the court stated defendant was sentenced to “the upper term of 6
year(s)” on count II. The upper term for a violation of section 186.22, subdivision (a) is
three years. (§ 186.22, subd. (a).) That term was apparently doubled to six years


                                             6.
       Defendant subsequently pled no contest to count I (§ 653f, subd. (b)), and
admitted the gang enhancement.4 (§ 186.22, subd. (b)(1)) Defendant also admitted a
prior conviction as defined in section 667, subdivisions (a) and (e). The prior prison term
allegations were dismissed.
       The court resentenced defendant to an aggregate term of 13 years. The sentence
included the lower term of three years on the murder solicitation count, doubled pursuant
to section 667, subdivision (e), plus two years for the gang enhancement, plus five years
pursuant to section 667, subdivision (a). On count II, the court sentenced defendant to six
years and stayed imposition of the sentence pursuant to section 654.
                                       DISCUSSION
                                              I.
 THE TRIAL COURT ERRED IN FAILING TO ADEQUATELY RESPOND TO
     THE JURY’S QUESTION REGARDING VERDICT CONSISTENCY

A.     SECTION 1138

       Section 1138 provides that if the jury “desire[s] to be informed on any point of law
arising in the case,… the information required must be given .…” (§ 1138; see also
People v. Beardslee (1991) 53 Cal.3d 68, 97.) Thus, “a trial court is required to instruct a
deliberating jury on its request ‘on any point of law arising in the case.’ [Citation.]”
(People v. Waidla (2000) 22 Cal.4th 690, 746, italics added.)
       “The court has a primary duty to help the jury understand the legal principles it is
asked to apply. [Citation.] This does not mean the court must always elaborate on the
standard instructions. Where the original instructions are themselves full and complete,


pursuant to section 667, subdivision (e). Five years were added to the term pursuant to
section 667, subdivision (a).
       4 Neither party has contended that the subsequent no contest plea to solicitation
affects our analysis of the conviction for active gang participation.



                                              7.
the court has discretion under section 1138 to determine what additional explanations are
sufficient to satisfy the jury’s request for information. [Citation.]” (Beardslee, supra, 53
Cal.3d at p. 97.)
       A trial court’s answer to a jury question can be erroneous even if it is free of
inaccuracies. 5 In addition to avoiding incorrect statements of law, the court’s answer
must also “clear up any instructional confusion expressed by the jury. [Citations.]”
(People v. Gonzalez (1990) 51 Cal.3d 1179, 1212, superseded by statute on another point
as stated in In re Steele (2004) 32 Cal.4th 682, 691.)
       Here, the trial court’s answer did not contain any incorrect statements of law. It
simply reiterated that the verdicts were decisions for the jury to make – a proposition
defendant does not dispute. The issue presented here is whether the trial court’s answer
satisfied the duty to “clear up [the] instructional confusion expressed by the jury.
[Citations.]” (Gonzalez, supra, 51 Cal.3d at p. 1212.) First, we will explore the nature of
the “instructional confusion” present here, then we will consider whether the court’s
answer “clear[ed] up” that confusion.
B.     INSTRUCTIONAL CONFUSION
       1.     The Third Element of Count II (§ 186.22(a))
       The trial court instructed the jury on the three elements of count II, the active gang
participation charge. Its instructions on the third element required the prosecution to
prove “defendant willfully assisted, furthered or promoted felonious criminal conduct by
members of the gang by directly and actively committing a felony offense.”6 The court

       5 The Attorney General quotes Beardslee, supra, 53 Cal.3d at p. 97: “Where the
original instructions are themselves full and complete, the court has discretion under
section 1138 to determine what additional explanations are sufficient to satisfy the jury’s
request for information. [Citation.]” As we explain, the original instructions were not
full and complete.
       6 The phrase, “by directly and actively committing a felony offense,” identifies
one of at least two ways this element can generally be satisfied. A defendant could


                                             8.
subsequently instructed the jury that “[f]elonious criminal conduct means committing or
attempting to commit the following crime: Solicitation of murder in violation of Penal
Code Section 653F(B).” (Italics added.) The court concluded its instructions on count II
by saying: “To decide whether a member of the gang or the defendant committed
solicitation of murder in violation of Penal Code Section 653F(B), please refer to the
separate instructions that I have given you on that crime.”
       2.     Incorporation of the Elements of the Underlying Felony
       “Some crimes … incorporate, as one element, all of the elements of another crime.
[Citation.]” (People v. Mil (2012) 53 Cal.4th 400, 413, original italics; e.g., People v.
Magee (2003) 107 Cal.App.4th 188, 192 (Magee) [accessory after the fact].) The plain
language of section 186.22, subdivision (a) shows that it is one such crime. Section
186.22, subdivision (a) clearly requires that members of the gang commit a felony.7
(§ 186.22, subd. (a). See also, People v. Green (1991) 227 Cal.App.3d 692, 704
abrogated on another point by People v. Castenada (2000) 23 Cal.4th 743.) Thus, the
elements of that underlying felony are incorporated into the active gang participation
offense.8 (Cf. Magee, supra 107 Cal.App.4th at pp. 192-193.)


satisfy this element by aiding and abetting other gang members in committing a felony;
or, as alleged here, directly committing a felony with other gang members. (See People
v. Rodriguez (2012) 55 Cal.4th 1125, 1135-1136.) Accordingly, the pattern jury
instruction divides the second portion of element three into two subparts. (See
CALCRIM 1400.) Subpart (a) sets forth the direct commission of a felony, while subpart
(b) sets forth aiding and abetting a felony. Here, there was no evidence that defendant
had merely aided and abetted another gang member in committing the crime of
solicitation, so the court omitted subpart (b) and only instructed on direct commission of
a felony.
       7We will refer to the crime constituting “felonious criminal conduct” as the
“underlying felony.”
       8The pattern jury instructions currently provide for instruction on the elements of
the underlying felony by reference. (See CALCRIM 1400 [“[To decide whether a
member of the gang [or the defendant] committed <insert felony or felonies listed


                                             9.
       The effect of this incorporation is to trigger a constitutional requirement to instruct
the jury on the elements of the underlying felony. (Cf. Magee, supra, 107 Cal.App.4th at
pp. 192-193.) Failure to do so runs afoul of the requirement that the court instruct “on
the principles of law that are relevant to and govern the case, including instruction on all
of the elements of the offense. [Citation.]” (Id. at p. 193.)

       3.     The Instructions Identified Two Potential Underlying Felonies, but Only
              Identified the Elements of One
       As to the underlying felony of solicitation, this requirement was met. The court
instructed the jury: “To decide whether a member of the gang or the defendant
committed solicitation of murder in violation of Penal Code Section 653F(B), please refer
to the separate instructions that I have given you on that crime.” The separate
instructions on solicitation correctly identified the elements of that crime.
       However, solicitation was not the only underlying felony tendered to the jury. The
instructions on count II defined “felonious criminal conduct” as “committing or
attempting to commit the following crime: Solicitation of murder in violation of Penal
Code Section 653F(B).” (Italics added.) The court did not instruct the jury on the
elements of attempt. (See § 21a; CALCRIM 460.)
       Identifying attempted solicitation as a potential underlying felony poses two
problems.
       First, it was error in and of itself. “It is error to give an instruction which, while
correctly stating a principle of law, has no application to the facts of the case.
[Citation.]” (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) The parties agree on appeal
that there was no substantial evidence defendant merely attempted to solicit Strickland to
commit murder. As the trial court noted during jury deliberations: “Given the evidence


immediately above>, please refer to the separate instructions that I (will give/have given)
you on (that/those) crime[s].]”])



                                              10.
in this case, it does not appear … the evidence would have supported giving [instruction
on attempted solicitation].” 9
       Second, without an accompanying explanation of the elements of attempt, the
instructions effectively told the jury to determine whether defendant committed an
undefined crime. As we explained in an analogous context: “Without [instruction on the
elements of the underlying offense] a jury will not be equipped with the necessary
information to find that [the] felony occurred. It will not know the facts the prosecution
must prove to establish the underlying felony, i.e., the jury will be left to guess or
speculate whether a felony occurred.” (Magee, supra, 107 Cal.App.4th at p. 193.)

       4.     The Court’s Answer to the Jury’s Question Did not Clear Up the
              Instructional Confusion
       With this understanding of the instructional confusion faced by the jury, we turn to
whether the court’s answer to the jury question cleared up that confusion. The jury asked
whether the verdicts on counts I and II needed to be the same. This seems to suggest the
jury was understandably confused as to whether “felonious criminal conduct” in count II
was functionally synonymous with the crime of solicitation to commit murder defined in
count I. If the original instructions had properly omitted any reference to attempted
solicitation, then this confusion would presumably not have arisen. Or confusion might
have been avoided if the erroneous reference to attempted solicitation had been coupled
with instruction on the elements of attempt. Regardless, the court’s response that each
verdict was a decision for the jury, while true, did not “ ‘clear up any instructional
confusion .…’ ” (People v. Loza (2012) 207 Cal.App.4th 332, 355.) This was error.


       9 This statement by the trial court suggests the reference to attempted solicitation
in the jury instructions was inadvertent. To avoid this type of confusion in the future, we
recommend brackets be placed around “or attempting to commit” in CALCRIM
No. 1400’s definition of “felonious criminal conduct.” This will signal there is a decision
point for the parties and the trial court to consider when settling on jury instructions.



                                             11.
C.     PREJUDICE
       “Any error under section 1138 … is subject to the prejudice standard of People v.
Watson [(1956)] 46 Cal.2d 818, 836 [(Watson)] .…” (People v. Roberts (1992) 2 Cal.4th
271, 326.) We ask whether “ ‘it is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the error.’ [Citation.]”
(People v. Soojian (2010) 190 Cal.App.4th 491, 519.)

       1. The Jury Likely Used Attempted Solicitation as the Basis for Finding Felonious
          Criminal Conduct Had Occurred Under Count II
       Under Watson, the error might have been harmless if the jury used actual
solicitation, rather than attempted solicitation, as the basis for finding element three of
section 186.22, subdivision (a) had been satisfied. However, it appears the opposite
occurred here. When considered together, the two verdicts suggest the jury used
attempted solicitation as the felony underlying element three of section 186.22,
subdivision (a). The jury did not convict defendant on the standalone solicitation charge
(count I). Under the court’s instructions, that leaves only attempted solicitation as the
basis for finding “felonious criminal conduct” in support of the third element of count II.
Thus, assuming the jury followed the instructions as given, it is likely the jury found
defendant had committed attempted solicitation in satisfaction of the third element of
186.22, subdivision (a).10 If so, they made that finding without any instruction on the
elements of attempt.




       10 Another possibility is that the jury believed defendant was a gang member and
therefore convicted him on count II without finding he promoted, furthered or assisted
felonious criminal conduct. This conclusion would also require reversal because “section
186.22(a) limits liability to those who promote, further or assist a specific felony
committed by gang members .…” (People v. Castenada, supra, 23 Cal.4th at p. 749.)



                                             12.
       The Attorney General cites United States v. Powell (1984) 469 U.S. 57 (Powell) in
arguing we should not “presume” the jury used attempted solicitation as the felonious
criminal conduct underlying the active gang participation conviction.11
       Powell is not applicable here. In that case, the Supreme Court reaffirmed that
consistency between criminal verdicts “is not necessary.” (Powell, supra, 469 U.S. at
p. 62, quoting Dunn v. United States (1932) 284 U.S. 390, 393.) We agree that, under
Powell and its progeny, it would erroneous to reverse a conviction merely because it is
inconsistent with another verdict. But this is not a case of inconsistent verdicts. Indeed,
there was only one verdict here. Rather, it is a case of purported instructional error.
While inconsistent verdicts do not warrant reversal, prejudicially erroneous or incomplete
jury instructions do. Here, we look to the jury’s failure to reach a verdict on count I in
analyzing whether a separate instructional error was prejudicial. The Powell line of cases
does not require that reviewing courts ignore a jury’s verdict (or failure to reach a
verdict) in determining whether an instructional error was harmless.
       2. People v. Cain is Distinguishable
       Though the Attorney General does not argue that People v. Cain (1995) 10 Cal.4th
1 (Cain) is on point, we feel it appropriate to distinguish that case. In Cain, the defendant
was charged with murder with an attempted rape special circumstance, among other
crimes. (Id. at p. 18.) The court instructed the jury on the elements of rape (CALJIC
10.00) and the attempted rape special circumstance (CALJIC 8.81.17). (Cain, supra, at
p. 44.) One of the elements identified in the special circumstance instruction was:
“ ‘… That the murder was committed while the defendant was engaged in or was an
accomplice in the commission or attempted commission of a burglary, a robbery, or a

       11 We note that we are not “presuming” the jury used attempted solicitation as the
underlying felony for count II. Rather, we are acknowledging that there is a reasonable
possibility the jury used attempted solicitation as the underlying felony. Indeed, that is
the conclusion the trial court came to as well.



                                             13.
rape….’ ” (Id. at p. 43, some italics omitted.) Neither the special circumstance
instruction nor any other instruction identified the elements of attempt. (Id. at p. 44.)
       In Cain, the Attorney General conceded that the failure to instruct on attempt was
error. (Cain, supra, 10 Cal.4th at p. 44.) The California Supreme Court analyzed
prejudice as follows:

       “As the Attorney General persuasively argues, insofar as relevant here
       [CALJIC 6.00] merely restates the common meaning of ‘attempt.’ To
       attempt an act is to ‘try’ or ‘endeavor to do or perform’ the act. (Webster’s
       New Internat. Dict. (2d ed. 1958) p. 177.) … As the prosecutor argued to
       the jury in his closing statement, no explanation other than rape or
       attempted rape was sufficient to explain the position of [the victim’s] body
       and the presence of pubic and body hairs in her clothes. Under these
       circumstances, we conclude omission of the attempt instruction did not
       contribute to the verdict obtained; the jury necessarily made the requisite
       findings necessary to hold defendant liable .…” (Ibid., italics added.)
       As this passage makes clear, Cain’s holding on this issue was narrowly-tailored to
the facts of that case.12 Both actual and attempted rape were consistent with the
evidence. (Cain, supra, 10 Cal.4th at p. 44 [“no explanation other than rape or attempted
rape was sufficient to explain” certain evidence].) The same cannot be said of the present
case. There was no evidence here that defendant merely attempted to solicit murder.
That is, there was no substantial evidence that defendant had taken a direct, ineffectual
act towards the commission of solicitation. (See § 21a.) Indeed the Attorney General
acknowledges that there was no substantial evidence of attempted solicitation. Thus, the
likelihood that the jury misunderstood or misapplied the confusing instructions on count
II is far greater here than in Cain.


       12  This narrow holding is consistent with the high court’s recent observation that
“ ‘[t]he law of “attempt” is complex and fraught with intricacies and doctrinal
divergences.’ [Citation.]” (People v. Bailey (2012) 54 Cal.4th 740, 753.) We think this
complexity is only amplified when the crime attempted is another inchoate offense like
solicitation.



                                             14.
       3. The Trial Court’s Original Instructions Were Incomplete
       The Attorney General also argues any error was harmless because the original
instructions were correct and the court’s response to the jury’s question did not remove
an element of the offenses from consideration. But as we have explained, the original
instructions were not correct. Thus while the court’s response did not remove an element
from the jury’s consideration, the court’s original instructions did undermine the jury’s
consideration of an element of the offense. (See Discussion § I.B.2., ante.) The court’s
response did not rectify this problem caused by the original instructions.

       4. Harmless Error Analysis Focuses on What Would Have Occurred in the
          Absence of Error
       The Attorney General also argues that if the court “advised the jury that the
verdicts needed to be the same, the jury likely would have returned a guilty verdict on
count 1, solicitation for murder. Directing the jury’s verdict in such a manner would
have been prejudicial to appellant….” This analysis inverts the Watson harmless error
test. In determining whether an error is harmless under Watson, supra, 46 Cal.2d 818, we
envision a hypothetical where no error occurred. (Id. at pp. 836-837 [“in the absence of
the error”].) Thus, Watson would have us envision a correct response to the jury’s
question and determine whether it would have resulted in a more favorable outcome for
defendant. The hypothetical response to the jury’s question posed by the Attorney
General (i.e., that “the verdicts needed to be the same”) would have been erroneous.13
Thus, it is not the type of hypothetical we are called to analyze under Watson.




       13 The verdicts on the two counts did not have to be the same if, for example, the
jury found defendant had committed solicitation, but did so alone (i.e., not with other
gang members). (See generally People v. Rodriguez, supra, 55 Cal.4th 1125.) In that
case, it would be consistent for the jury to convict on count I and acquit on count II.



                                            15.
       5. The Error Was Not Harmless
       A correct response by the trial court would have clarified the “ ‘instructional
confusion expressed by the jury.’ [Citation.]” (People v. Loza, supra, 207 Cal.App.4th
at p. 355.) Here, the source of that confusion was likely the original instruction’s
erroneous reference to attempted solicitation without any description of the elements of
that offense. Consequently, an appropriate answer under section 1138 would have
removed attempted solicitation from the definition of “felonious criminal conduct.” This
would have left actual solicitation as the only underlying felony for the jury to consider.
As corrected, the instructions would have made clear that if the jury did not find
defendant committed solicitation in count I, then “felonious criminal conduct” would not
have been established for count II.14
       Here, the jury could not reach a verdict on the solicitation count. Therefore, if it
had been made clear to the jury that solicitation under count I was synonymous with
“felonious criminal conduct” under count II, it is reasonably likely the jury would have
failed to reach a verdict on count II as well. And, as we explained in People v. Soojian, a
hung jury is a “more favorable” result under the Watson harmless error analysis. (People
v. Soojian, supra, 190 Cal.App.4th at pp. 520-521.) Therefore, we conclude the error was
not harmless under Watson, supra, 46 Cal.2d 818 and reverse defendant’s conviction for
violating 186.22, subdivision (a).
       We therefore need not reach the remainder of defendant’s contentions.
                                        CONCLUSION
       We take reversal of a criminal conviction seriously. But, as we have explained,
there are a number of possible explanations for the jury’s verdicts. The jury could have


       14Defense counsel requested that the trial court make respond to the jury’s
question by explaining if the jury found defendant not guilty of solicitation, they must
find defendant not guilty of active gang participation.



                                             16.
convicted defendant on count II by either (1) ignoring the instruction requiring that
defendant committed an underlying felony, or (2) concluding he committed attempted
solicitation without instruction and without substantial evidence. The Attorney General
would have us consider a third possibility: that the jury concluded defendant committed
the underlying felony of solicitation. But the viability of that scenario is greatly
undermined by the jury’s failure to reach a verdict on solicitation. Having concluded the
instructional error was prejudicial, we must reverse.
                                      DISPOSITION
       Defendant’s conviction for violating section 186.22, subdivision (a) is reversed.
The matter is remanded for possible retrial.

                                                                  _____________________
                                                                  Poochigian, J.
WE CONCUR:


______________________
Cornell, Acting P.J.


______________________
Franson, J.




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