Filed 6/21/13 P.v. Evans CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E056152

v.                                                                       (Super.Ct.No. SWF1100070)

DANIEL ROBERT EVANS,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Kelly L. Hansen, Judge.

Affirmed in part; reversed in part.

         Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine

Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.




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       A jury found defendant and appellant Daniel Robert Evans guilty of attempted

premeditated murder (Pen. Code, §§ 664/187, subd. (a), count 1),1 and active

participation in a criminal street gang (§ 186.22, subd. (a), count 2). The jury also found

true that defendant personally and intentionally discharged a firearm that proximately

caused great bodily injury. (§ 12022.53, subd. (d).)2 Defendant was sentenced to a total

indeterminate term of 32 years to life in state prison with credit for time served as

follows: seven years to life on count 1, plus a consecutive term of 25 years to life for the

gun enhancement, and a stayed midterm of two years on count 2.

       Defendant’s sole contention on appeal is that there is insufficient evidence to

support his conviction on count 2. In light of the recent decision by the California

Supreme Court in People v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez), we will

reverse the conviction on count 2.

                                               I

                                FACTUAL BACKGROUND

       On January 9, 2011, Aaron Williams went to a Carl’s Jr. restaurant in San Jacinto

with his uncle Robert Moreno, who has Down syndrome, and his parents. While

Williams’ parents waited in the car, Williams and Moreno went inside the restaurant to

order food. Subsequently, defendant entered the restaurant with his girlfriend, sister, and

young nephew.

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

       2 The jury found the criminal street gang enhancement (§ 186.22, subd. (b))
attached to count 1 not true.


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       While Moreno was ordering his food, defendant and the two women began

giggling. One of the women began yelling, trying to rush Moreno to order faster.

Williams became upset and told them to wait their turn as Moreno suffered from Down

syndrome. One of the women yelled at defendant “to do something.” Williams and

defendant thereafter got into a confrontation, with defendant saying, “It seems like you

have a death wish. Step outside, and I will grant it to you.” The two women kept telling

defendant to do something. Defendant then left the restaurant. Shortly thereafter

Williams left too to ask his parents whether they wanted to order food.

       As Williams was exiting the restaurant, one of the women started yelling and

cursing at Williams, and telling defendant to do something. Defendant, who was

standing next to a car parked next to Williams’ car, pointed a gun at Williams and fired

once, shooting Williams’ in the side of his cheek. Williams fell to the ground, and

defendant fled the scene.

       Williams is Hispanic. He had never been in a gang and was unarmed.

       A gang expert testified that defendant was an active member of the L-Squad gang,

primarily a Black, male-dominated gang with about 35 members located in the San

Jacinto area. The L-Squad gang is rivals with Hispanic San Jacinto gangs, primarily the

San Jacinto Street gang. The Carl’s Jr. restaurant where the shooting occurred was

located in L-Squad territory. The primary activities of the gang include theft, burglary,

assault, and murder. The gang members display the letter “L” to identify themselves.

       L-Squad gang members Davon Jones and Arthur Hoskins were convicted of

burglary in 2009, Johnnie Grant of attempted murder in 2009, and Cody Walsh of murder


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in 2010. Defendant denied being a gang member but claimed that he did not get along

with Hispanics from San Jacinto. In addition, defendant maintained communication with

L-Squad gang members while awaiting trial in this case.

       The gang expert opined that defendant is an active member of the L-Squad gang

based on defendant’s tattoos, people he associated with, his repeated contacts with other

active gang members, and his commission of the crime in this case. The gang expert also

concluded that the offense was committed for the benefit of the L-Squad gang, because

the shooting “bolsters the L-Squad criminal street gangs through using fear and

intimidation and showing that they actually do use violence.”

       There was no evidence that defendant acted with others in committing the crime in

this case.

                                             II

                                       DISCUSSION

       Defendant contends there was insufficient evidence to support his conviction of

active participation in a criminal street gang (§ 186.22, subd. (a), count 2), because there

was no evidence that he committed the offense with gang members or that he willfully

promoted, furthered, or assisted in felonious criminal conduct by members of the gang in

which he actively participated. In light of the Supreme Court’s decision in Rodriguez,

supra, 55 Cal.4th 1125, the People agree that defendant’s conviction on count 2 should

be reversed. We also agree.

       Former section 186.22, subdivision (a), imposes punishment for “[a]ny person

who actively participates in any criminal street gang with knowledge that its members


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engage in or have engaged in a pattern of criminal gang activity, and who willfully

promotes, furthers, or assists in any felonious criminal conduct by members of that

gang, . . .” The elements of the offense are: “(1) active participation in a criminal street

gang, in the sense of participation that is more than nominal or passive; (2) knowledge

that the gang’s members engage in or have engaged in a pattern of criminal gang activity;

and (3) the willful promotion, furtherance, or assistance in any felonious criminal conduct

by members of that gang.” (People v. Albillar (2010) 51 Cal.4th 47, 56.)

       Appellate courts were divided as to whether a gang member, acting alone, could

be found to have willfully promoted, furthered or assisted in felonious conduct of

members of the gang of which he or she was a member. (Rodriguez, supra, 55 Cal.4th at

p. 1128.) In Rodriguez, our Supreme Court held that a conviction for active participation

in a criminal street gang required proof that the defendant acted with at least one other

gang member in committing the underlying offense. (Id. at pp. 1128, 1129-1139.) The

court held that “section 186.22[, subdivision ](a) reflects the Legislature’s carefully

structured endeavor to punish active [gang] participants for commission of criminal acts

done collectively with gang members.” (Rodriguez, at p. 1139.) A defendant who acts

alone does not violate section 186.22, subdivision (a).

       Defendant correctly points out that there is no evidence that he acted with other L-

Squad gang members in committing the crime in this case. The evidence adduced at trial

shows that defendant was accompanied by his sister, girlfriend, and young nephew.

There was no evidence that these women were members of the L-Squad gang or that

reference to the gang was made during the altercation. The evidence showed that


                                              5
defendant acted entirely alone, unassisted by any gang members and outside the presence

of any gang members. Because defendant acted alone in shooting Williams, his

conviction for active gang participation must be reversed for insufficient evidence as a

matter of law.

                                             III

                                      DISPOSITION

       Defendant’s conviction on count 2 for active participation in a criminal street gang

(§ 186.22, subd. (a)) is reversed. The trial court is directed to modify defendant’s

sentence accordingly and deliver a certified copy of an amended minute order and

amended abstract of judgment, each reflecting the modification of the sentence, to the

Department of Corrections and Rehabilitation. In all other respects, the judgment is

affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                RAMIREZ
                                                                                         P. J.


We concur:


MILLER
                          J.


CODRINGTON
                          J.




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