Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08ZF0020 Richard W. Stanford, Jr., Judge.
Arthur Martin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant and five others were charged with two counts of murder (Pen. Code, § 187, subd. (a); counts one and two), one count of deliberate and premeditated attempted murder (§§ 664, subd. (a), 187, subd. (a); count three), and active participation in a criminal street gang (§ 186.22, subd. (a); count 4) on December 17, 2006. The indictment alleged two murder special circumstances (§ 190.2, subds. (a)(3) [multiple murder], (a)(22) [murder for gang purpose]), that the murders and attempted murder were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)), and that a principal personally discharged a firearm causing death or great bodily injury (§ 12022.53, subds. (d), (e)(1)).
All statutory references are to the Penal Code unless otherwise stated.
Additionally, defendant and two codefendants were charged with assault with a firearm (§ 245, subd. (a)(2); count five) and active gang participation (count six) on December 15, 2006. The indictment further alleged the assault with a firearm was committed for the benefit of a criminal street gang. At least three of the accused, including defendant, received separate trials.
The indictment initially charged defendant in seven counts. Ultimately, however, the offense originally charged as count five was dismissed and counts six and seven were renumbered counts five and six, respectively. We refer to these counts by their subsequent designations.
During jury deliberations it became evident the jury was split nine to three over whether the prosecution had proved the murders and attempted murder were deliberate and premeditated, nine concluding the prosecution had carried its burden. Having determined further argument might help the deliberative process, the court permitted additional argument by the attorneys. Thereafter, two more jurors joined the majority in favor of guilty verdicts for first degree murder and a finding that the attempted murder was deliberate and premeditated. (The jury had already reached agreement on the remaining counts.) After the court was informed a juror was not deliberating, it conducted an investigation by questioning a number of jurors about whether a particular juror was taking part in the deliberative process. The court also questioned the juror who was the subject of the inquiry, Juror No. 9. At the conclusion of the inquiry, the court found Juror No. 9 was not deliberating and removed him, replacing him with an alternate juror. The newly constituted jury returned its verdicts shortly thereafter.
The jury found defendant guilty on all counts and found the special allegations true. The court sentenced defendant to life without the possibility of parole (LWOP) on count one with a consecutive 25 years to life term for the discharge of a firearm. The court then imposed a consecutive LWOP term on count two with a consecutive 25 years to life term for the discharge of a firearm. On count three, the attempted murder, the court imposed a consecutive 15 years to life term plus an additional 25 years to life term for the discharge of a firearm. Finally, the court imposed a consecutive three-year term for assault with a firearm and ordered mid-term sentence of two years on the active gang participation counts to be run concurrently with the other imposed sentences.
Defendant contends the trial court prejudicially erred in removing a deliberating juror without good cause and that the evidence is insufficient to support all but one of his convictions. We find the trial court did not err in removing the juror and that the December 17 charges are supported by the evidence. We reverse, however, the convictions on the two December 15 charges based upon a lack of sufficient evidence.
I
FACTS
December 15, 2006 Shooting
On December 15, 2006, at about 7:00 p.m., G. Rojas and his son N. Rojas were finishing up their day selling corn on the cob from their push carts at apartments on Raitt, Townsend, and Monte Vista Streets. They pushed their carts from Townsend Street and made a right turn on Monte Vista to return to their van parked about 30 meters away, just past the alley. G. Rojas said two people ran passed them yelling “There they go.” There were five or six people in the alley to the right of Monte Vista.
N. Rojas said he did not see how many ran past them, but it was more than two.
G. Rojas heard two shots fired about 10 to 15 seconds after he and his son were passed by the individual who yelled “there they go.” Initially, N. Rojas testified the people who ran by them started shooting toward people in the alley and the people in the alley shot back. Later, he said he could not tell which group fired first. He heard approximately five shots in quick succession. A suspect who had run directly behind N. Rojas fired a semiautomatic handgun. Shots were fired from N. Rojas’s left and right. G. Rojas said the shooting started at the beginning of the alley. He was hit by a bullet in the lower right side of his back and has been confined to a wheelchair since the shooting.
Police recovered two shell casings from the parking lot behind one apartment building and two more from the breezeway next to the parking lot. The two found in the parking lot were close to each other. All were RP.380-bullet casings.
December 17, 2006 Shootings
District Attorney Investigator Kevin Ruiz was a Santa Ana police officer on December 17, 2006. About 4:30 p.m. he received a call about a shooting by Camile Street in Santa Ana. Arriving at the scene, Ruiz saw Gabriel Perez and Angel Secundino laying on the sidewalk, apparently dead. Each had been 14 years old and died of a single bullet wound to the head. Ruiz saw paramedics loading Fernando G. into an ambulance. Fernando G. was 16 years old at the time and had been shot in the torso. The wound was potentially mortal and required emergency surgery. Fernando G. remained in the hospital for a month. All three were known gang members, but unarmed.
Police recovered two RP.380 cartridges from the scene. One was near Perez’s body and the other beneath the body. Police also recovered a bullet on the sidewalk, along the fence line.
Defendant’s Arrest
On January 15, 2007, Santa Ana Police Officer Edward Gutierrez and his partner Corporal Hernandez were working crime suppression detail and were on the lookout for a suspect with the moniker of “Clumsy.” While in the area they had been told the suspect frequents, they saw defendant who matched the physical description they had been provided. Defendant immediately began running, grabbing his waistband area as he ran. In Gutierrez’s experience, when a suspect runs while grabbing his waist area, it usually means the suspect is holding onto either contraband or a weapon. Gutierrez eventually caught defendant who then dropped a loaded.380 semiautomatic pistol.
The Guns
The.380-caliber Davis Industries pistol defendant dropped and the cartridges recovered from each of the December shootings were examined. All six cartridges were fired from that pistol. The bullet recovered at the scene of the December 17 murders was a different caliber and had been fired from a revolver found during the investigation.
The Gang Expert
Santa Ana Police Department gang homicide Detective Matthew McLeod testified as a gang expert. He defined a criminal street gang; explained the three ways in which one may join a gang, including walking in; spoke about the significance of monikers; the importance of guns to gangs - “the great equalizer” the higher esteem afforded those who carry guns; Walnut Street gang’s common signs, symbols and dress; its territory; Walnut Street’s primary activities; and a prior qualifying crime committed by a Walnut Street member. He explained the concept of backing up as assisting fellow gang member commit a crime. Backup is the assistance offered by the “non-primary aggressors.” Backup can be offered in a number of ways, including acting as a lookout or waiting to expedite a quick getaway. In McLeod’s experience, gang members do not commit crimes with non-gang members.
McLeod stated that Walnut Street is a criminal street gang and Marco Perez (“G-Boy”), Juan Roldan (“Minor”), and Prospero Guadarrama (“Rascal”) are all Walnut Street active gang members. He also opined that defendant was an active Walnut Street gang participant on December 15 and December 17, 2006, and that the crimes on each date benefitted Walnut Street.
Walnut Street has a number of enemies or rivals, including the Lopers, KPC, Bishop Street, Central Myrtle, and Townsend criminal street gangs. The Lopers territory is in the area of Camile where the December 17 shootings took place, and Townsend claims the area in which the December 15 shooting occurred. Townsend gang members are known to carry guns and can be expected to aggressively guard their territory.
Defendant’s Statement About the December 17 Shootings
After his arrest, Santa Ana Police Department Detectives McLeod and Flynn questioned the 22-year-old defendant about the December 17 shooting incident involving the Lopers. Defendant was not forthright about the details of the shooting or his connection to Walnut Street, but eventually made the following statements: Prior to the shooting, defendant saw four members of Walnut Street getting gas at the ampm store on the corner of First Street and Broadway. They asked him to go cruising. The black four-door Chrysler was driven by “a little kid, ” G-Boy.
Defendant got in and sat in the middle of the rear seat. Rascal was on his left and Minor on his right. “Stranger” sat in the front passenger seat. Defendant was panicking. Rascal told him not to panic and that he had a gun (“we’re packing”). Rascal had a chrome revolver and lifted his sweatshirt to show defendant. Defendant thought someone else was packing as well, but he did not know who.
About 30 to 35 minutes later, Minor spotted three Lopers members, pointed them out, said “there go our enemies, ” and referred to them using a derogatory term. Minor told the driver to stop. The driver stopped and backed up to where the Lopers were. All the passengers, including defendant, got out of the car. All three rear seat passengers exited out the same door on the left side. Defendant initially said he was two-to-four feet from the others who approached the Lopers, and then changed his estimate to eight feet. The other passengers then “hitting them up, ” asking, “Wh[ere] are you from?” Someone responded, “Lopers, ” and defendant heard someone in his group yell “Walnut.” Stranger started “socking” one of the Lopers. Defendant said he did not see a gun during the hit up.
Defendant turned to the driver to ask what was going on. He then heard three shots close in time, “bang, bang, bang.” He turned back around and saw two of the Lopers on the ground. The passengers got back into the car and went home. Defendant said he did not see the second gun until they were getting back into the car. He said Minor had a gray gun in his waistband. Defendant only saw the handle of the gun.
When asked about the pistol he had on him at the time of his arrest, defendant stated he found it in a bush just that morning while walking to work. He thought it was a BB gun, but a friend he showed it to said it was a.380 pistol. When the friend looked at it, the clip came off and defendant saw it was loaded with bullets. Defendant said he had never seen a gun like that before and he does not know anything about guns.
Defendant’s Statement About the December 15 Shooting
The day after Detectives McLeod and Flynn questioned defendant about the double homicide, Detective Paulson interrogated defendant about the shooting on December 15. Defendant told Paulson he was at the scene of the shooting in the alley by the apartments. He went there to visit Miguel, a fact Paulson seemed to already be familiar with. According to defendant, he was with Minor and Angel. Defendant said Angel is “a little kid, ” younger than Minor, and about 14 or 15 years old. He knew Minor was carrying a gun for protection from other gangs. They were walking down the alley off of Monte Vista and between Raitt and Townsend Streets. Defendant walked in front of the other two. They saw five or six “kids” ranging from 12 to 18 years old who “went running to Townsend and ratted.” A couple of minutes later, five or six guys - Townsend gang members, one of whom had a gun - came out and “started shooting” down the alley from the corner of Monte Vista and the alley. Defendant said his group had been caught by surprise. Minor returned fire. Defendant hid by a garage. Once the shooting stopped, Minor and Angel started running back toward Monte Vista because the alley dead ends in the other direction.
Defendant said Minor gave him the.380 pistol later that night because Minor did not want to walk home with the gun on him. Minor said he would, and did, pick up the gun the next day, December 16.
When Paulson asked how it was defendant had the.380 pistol when arrested, defendant said he received a message to get rid of the gun because it was hot and could be linked back to those who may have used it. He also stated Walnut Street had only one.380 pistol. He said he did not know if the pistol had been used in the December 17 incident, but that there had been a second gun in the car that day. Defendant also said he “kick[s] it” with Walnut Street and was walked into the gang.
II
DISCUSSION
A. Removal of Juror
The case was submitted to the jury on Thursday, March 19, 2009, at 2:28 p.m. Prior to leaving at 5:00 p.m., to return Monday morning, March 23, the jury requested clarification regarding the difference between first and second degree murder. Three minutes after the jury returned to the jury room on Monday, the court sent the jury a written response to its earlier request. Approximately two and a half hours later, the jury sent out another request: “We have many jurors who are having trouble moving between first and second degree murder, we have a consensus on a murder charge, but are seeking advice on how to proceed with deliberations on 1st or second degree. Jury count 9 for 1st 3 for 2nd. [¶] People on first don’t want to move to second and vice versa.” Shortly after the jury returned from lunch, the court sent the jury a written response. At 4:15 p.m., the jury sent another note to the court indicating it had reached verdicts on all counts and findings except for the murder and attempted murder counts. “We have found that the defendant is guilty of murder, but are unable to unanimously find the defendant not guilty of first degree murder. Additionally, in regard to count three, specifically the premeditation and deliberation finding we are also unable to reach a verdict.” Less than 10 minutes later, the jury left for the evening recess.
The next day, March 24, the court asked the jurors if further argument by counsel might assist the jury in reaching verdicts on the first three counts. A majority agreed and later that morning each counsel presented further argument to the jury. The jury resumed deliberating at 10:50 a.m. Fifteen minutes later another note was sent to the court about the deliberation process in determining whether an accused is guilty of first or second degree murder. It appears two of the three jurors who had been in the minority had changed their votes.
At 2:57 p.m., the foreperson, Juror No. 5, was brought into open court because there had been a complaint made to the bailiff about a juror not deliberating. The foreperson said that juror later identified as Juror No. 9 was very adamant about a specific charge when the jury entered the jury room the previous Thursday, has not budged from that charge, and has not rationally expressed why he holds that opinion. The foreperson said, however, that Juror No. 9 did talk “somewhat” with the other jurors about the issues and explained his position after the jury heard the supplemental arguments. The foreperson stated the jury was able to reach verdicts on the remaining counts after “very little deliberation took place.” Apparently the jury agreed on those counts and findings on the afternoon they began deliberating.
A number of jurors, including Juror No. 9, were questioned by the court. There were those who believed Juror No. 9 had not deliberated and others who said he did. The second juror questioned by the court was Juror No. 1. That juror saw Juror No. 9 fall asleep during the trial. Once, while asleep, Juror No. 9’s “glasses fell down in his face, to wake him up.” Also during the trial, Juror No. 1 saw Juror No. 9 “almost lying back, ” apparently asleep. It concerned Juror No. 1 enough that the juror asked Juror No. 9 whether he had heard all the evidence. According to Juror No. 1, Juror No. 9 fell asleep during the playing of the tape of defendant’s interrogation and refused to deliberate “in the very beginning” of deliberations. Other jurors confirmed Juror No. 9 fell asleep during the trial. Juror No. 2 said, “He kept falling asleep and didn’t seem to be paying attention.” She added that “he fell asleep while we were deliberating.” Juror No. 4 saw him fall asleep twice. Juror No. 10 said Juror No. 9 fell asleep “a couple of times during the court sessions.”
Section 1089 authorizes the removal of a sitting juror in limited situations and provides in pertinent part: “If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, ... the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors.” Defendant contends the court erred in removing the juror who had been deliberating and the error requires reversal.
We review the trial court’s decision to remove a sitting juror for abuse of discretion. (People v. Cleveland (2001) 25 Cal.4th 466, 474 (Cleveland).) That being said, to uphold a decision removing a juror the “‘juror’s inability to perform as a juror “‘must appear in the record as a demonstrable reality.’” [Citation.]’ [Citation.]” (Ibid.) As Justice Werdegar has pointed out, a court would abuse its discretion in removing a juror absent “evidence showing to a demonstrable reality that the juror failed or was unable to deliberate.” (Id. at p. 488 (conc. opn. of Werdegar, J.).)
Because of the potential inquiries in this area have for violating the sanctity of jury deliberations, a trial court must use “caution... in determining whether a juror has refused to deliberate.” (Cleveland, supra 25 Cal.4th at p. 475.) The court must be careful in its inquiry so as to not intrude upon “‘“the sanctity of the jurors’ thought processes.” [Citation.]’ [Citation.]” (Ibid.) “Many of the policy considerations underlying the rule prohibiting post-verdict inquiries into the jurors’ mental processes apply even more strongly when such inquiries are conducted during deliberations. Jurors may be particularly reluctant to express themselves freely in the jury room if their mental processes are subject to immediate judicial scrutiny. The very act of questioning deliberating jurors about the content of their deliberations could affect those deliberations.” (Id. at p. 476.) Yet when there is an allegation of misconduct, the court “‘is obligated to make reasonable inquiry into the factual explanation for that possibility.’ [Citation.]” (Id. at p. 477.)
In this case, the court was informed that Juror No. 9 was not deliberating. The court’s inquires to those jurors questioned were limited and did not invade the deliberative process of the jury room. The questions were aimed at determining whether Juror No. 9 participated in the deliberative process and did not seek information as to what the juror’s position was or why the juror held that position.
There were jurors who said Juror No. 9 did not deliberate and others who said he did, but that his position was not logical. “The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge.” (Cleveland, supra, 25 Cal.4th at p. 485.)
While the disputed evidence in this matter regarding the juror’s actions in the jury room might not, by itself, establish a “demonstrable reality” Juror No. 9 was not deliberating or was unable to deliberate, there is other evidence to support such a finding. Three jurors stated Juror No. 9 fell asleep during trial. One said he also fell asleep during deliberations. Additionally, the trial judge observed that Juror No. 9 “nodded off” several times during the trial. Here, as in People v. Johnson (1993) 6 Cal.4th 1, “there was ample evidence indicating that on one or more occasions [the removed juror] had actually fallen asleep during trial.” (Id. at p. 21, disapproved on another ground in People v. Rogers (2006) 39 Cal.4th 826, 879.) Obviously, one cannot deliberate about things said while he was asleep. Accordingly, we find removal of the juror did not violate section 1089.
The court should take some action, such as interrupting the proceedings and asking all the jurors to get up for a moment and stretch, rather than letting the proceedings continue and giving the juror a stare after the juror eventually wakes on his own.
B. Sufficiency of the Evidence
“In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we ‘examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-evidence that is reasonable, credible and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1129.) “‘The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on “‘isolated bits of evidence.’” [Citation.]’” (People v. Slaughter (2002) 27 Cal.4th 1187, 1203.) We may reverse for lack of substantial evidence only if “‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) “The standard of review is the same when the prosecution relies mainly on circumstantial evidence. [Citation.]” (People v. Valdez (2004) 32 Cal.4th 73, 104.)
1. December 17, 2006 Shootings
Defendant contends the evidence does not support his convictions for murder and attempted murder. He admits the evidence supports a determination the shooters were guilty, but argues there is no evidence he was one of the shooters or that he shared the shooters’ intent to kill. He asserts he was tried on the theory that he aided and abetted the murders and the attempted murder, but the evidence is lacking because it fails to support a reasonable inference he shared the shooters’ intent. For some reason not apparent from the record, the prosecutor chose not to proceed on a theory that defendant aided and abetted a “gang hit up, ” the natural and probable consequence of which was murder. (See People v. Medina (2009) 46 Cal.4th 913, 920 [homicide a natural and probable consequence in gang confrontation]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1367 [homicide a natural and probable consequence of punch thrown in by gang member]; People v. Godinez (1992) 2 Cal.App.4th 492, 500 [homicide a natural and probable consequence of gang attack]; People v. Montano (1979) 96 Cal.App.3d 221, 227 [homicide a natural and probable consequence expected in gang attack].) Had the case been tried on and the jury instructed on the natural and probable consequences theory of liability, the question of sufficiency of the evidence may not have been an issue on appeal. However, we conclude a reasonable jury could have found defendant guilty of the murders and attempted murders as charged. Indeed, a reasonable jury could have found defendant was one of the shooters.
Montano was abrogated by statute on another ground, as explained in In re John R. (1981) 116 Cal.App.3d 940, 944.)
Viewing the evidence in the light most favorable to the judgment, the following evidence supports the convictions arising out of the December 17 shootings. The day before the shooting, defendant possessed one of the two guns used in the shootings. On December 17, five Walnut Street gang members, including defendant, were driving in Santa Ana when three “enemies” were spotted walking. The driver was told to stop the car. He did and then backed up to where the three Lopers were. All four passengers, including defendant, got out of the car, approached the Lopers, and did a gang hit up. One of the Lopers was punched by at least one of the Walnut members and apparently did not fight back, contrary to what would be expected in a gang challenge. (See e.g., People v. Godinez, supra, 2 Cal.App.4th at p. 497 [gang expert testified challenged gang must accept the challenge or lose face].) There is a readily apparent reason for the failure to fight back. The Lopers were unarmed and it is reasonable to the two murder weapons were already pointed at the Lopers, leading the assaulted Loper to conclude any attempt to fight back would instantly become fatal. Two of the Lopers were then executed and the third was shot in the torso. All four Walnut members got back into the waiting car and, with the driver, fled the scene. A month later, defendant was arrested while in possession of the same gun (one of the murder weapons) he possessed the day before the shootings. He then lied about his possession of the weapon and, initially at least, about his involvement in the shooting. Based upon this evidence, a reasonable jury could have found that defendant was one of the shooters, his denial notwithstanding.
Defendant’s feigned surprise at discovering, after the shooting, that Minor, another member of the gang, had a gun - the very gun defendant admittedly had the day before the shooting and when he was arrested - is reminiscent of the scene in Casablanca where Captain Renault is handed his winnings while announcing the closure of the nightclub because he was shocked to discover gambling taking place on the premises.
The prosecutor’s dual theories of liability - that defendant was a shooter or an aider and abettor who shared the shooters’ intent - do not mean the jury had to reject, and that the evidence does not support, the theory that defendant was not one of the shooters. Unlike the shooting two days earlier, where the only evidence relating to defendant’s possession of the gun is that he had it after the shooting, here defendant had the murder weapon the day before the shooting and after the shooting when he was arrested less than a month later. The evidence was sufficient.
2. December 15, 2006 Shooting (Counts Five and Six)
Defendant was convicted of assault with a firearm (§ 245, subd. (a)(2)) and active gang participation (§ 186.22, subd. (a)) in connection with the December 15 shooting incident in the alley off of Monte Vista. He argues the evidence does not support his conviction for assault with a firearm, asserting the prosecution failed to prove the shots fired by Minor were not fired in self-defense in response to shots fired at them by Townsend gang members. He reasons that if the assault charge is reversed, the active gang participation charge alleged to have occurred on the same date must also be reversed, given the latter charge requires the commission of a felony on the same date and the only possible felony on that date was the assault charge. We must agree.
The only evidence that Minor was the shooter comes from defendant’s statement to the police. For purposes of our analysis, it does not matter whether defendant was the shooter on this occasion or, as he says, Minor was the shooter.
It appears from the evidence that defendant and his fellow Walnut Street members were in the alley between Raitt and Townsend Streets. In defendant’s statement to the police, he said a number of “kids” saw him and his two companions and “went running to Townsend and ratted.” G. Rojas and his son testified people went running by them on Monte Vista, yelling “There they go.” N. Rojas initially testified the people that ran passed him - apparently the Townsend Street group - fired first and those in the alley returned fire. He later said he did not know which group fired first. The gang expert testified Townsend gang members are not only known to carry guns, but can be expected to aggressively guard their territory. Defendant told the police Minor had the firearm that day and only fired after Townsend Street fired at them first, a version – at least with regard to the timing of the shots - that conforms with N. Rojas’s initial testimony. Whether the jury believed defendant’s statement and N Rojas’s initial testimony or not, there is no evidence the first shot came from defendant’s group.
To prove a defendant guilty of an assault with a deadly weapon, the prosecution must prove beyond a reasonable doubt that the defendant (or the person he aided and abetted) did not act in self-defense or in defense of another. In order to convict a defendant of assault with a firearm, the prosecution must prove the defendant (1) did an act with a firearm, (2) willfully, (3) while aware of facts that that would lead a reasonable person to realize the act would directly and probably result in the application of force to someone, (4) with the present ability to apply the force, and (5) did not act in self-defense. (CALCRIM No. 875.) Evidence, with reasonable inferences, must support each of the elements. They may not be proven by speculation, conjecture, or prejudice. “We may speculate about any number of scenarios that may have occurred on the [evening] in question. A reasonable inference, however, ‘may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶]... A finding of fact must be an inference drawn from evidence rather than... a mere speculation as to probabilities without evidence.’ [Citations.]” (People v. Morris (1988) 46 Cal.3d 1, 21, disapproved on another ground in In re Sassounian (1995) 9 Cal.4th 535, 543, fn 5.) In the absence of any substantial evidence Minor (or defendant) did not fire in self-defense, we must conclude the evidence is insufficient to support conviction for assault with a firearm.
The reversal of defendant’s conviction for assault with a firearm requires us to also reverse his conviction for active gang participation on December 15, 2006. “Section 186.22, subdivision (a) punishes active gang participation where the defendant promotes or assists in felonious conduct by the gang. It is a substantive offense whose gravamen is the participation in the gang itself. Hence, under section 186.22, subdivision (a) the defendant must necessarily have the intent and objective to actively participate in a criminal street gang. However, he does not need to have the intent to personally commit the particular felony (e.g., murder, robbery or assault) because the focus of the street terrorism statute is upon the defendant’s objective to promote, further or assist the gang in its felonious conduct, irrespective of who actually commits the offense.” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1467, fns. omitted.) In order “[t]o prove that the defendant aided and abetted felonious criminal conduct by a member of the gang, the People must prove that: [¶] 1. A member of the gang committed a crime; [¶] 2. The defendant knew that the gang member intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the gang member in committing the crime; [¶] AND [¶] 4. The defendant’s words or conduct did in fact aid and abet the commission of the crime.” (CALCRIM No. 1400.) Thus, conviction for active gang participation requires the jury to find a felony was committed by a member of the gang and the defendant aided and abetted the gang member in committing the crime.
Having found the evidence insufficient to sustain a conviction for assault with a firearm and there being no evidence of any other “felonious criminal conduct” aided and abetted by defendant and committed by a gang member, the evidence fails to support defendant’s conviction for active gang participation.
III
DISPOSITION
The judgment on renumbered counts five (assault with a firearm) and six (active gang participation) are reversed. The judgment is affirmed in all other respects. The clerk of the superior court is directed to prepare and mail to the Department of Corrections and Rehabilitation a certified copy of an amended abstract of judgment consistent with this opinion.
WE CONCUR: RYLAARSDAM, ACTING P. J., BEDSWORTH, J.