THE PEOPLE, Plaintiff and Respondent, v. ROBERT ANTHONY LAMAS, JR., Defendant and Appellant, 42 Cal. 4th 516

Opinion CHIN, J. Penal Code

section 186.22 is a provision of the California Street Terrorism Enforcement and Prevention Act, also known as the STEP Act. (§ 186.20 et seq.) A violation of

section 12031, subdivision (a)(1), is the misdemeanor offense of carrying a loaded firearm in public. Subdivision (a)(2)(

C) of

section 12031 elevates the offense to a felony if committed by “an active participant in a criminal street gang, as defined in subdivision (

a) of

Section 186.22.” We recently interpreted the phrase “an active participant in a criminal street gang, as defined in subdivision (

a) of

Section 186.22” in

section 12031, subdivision (a)(2)(

C) to mean that “carrying a loaded firearm in public becomes a felony under

section 12031(a)(2)(

C) when a defendant satisfies the elements of the offense described in

section 186.22(a).” (People v. Robles (2000) 23 Cal.4th 1106, 1115 [99 Cal.Rptr.2d 120, 5 P.3d 176] (Robles), italics added.) In this case, we again consider the interplay between sections 186.22(

a) and 12031(a)(2)(C). We conclude that, in order to establish the elements of

section 186.22, among other things, the prosecution must prove that the charged gang member willfully promoted, furthered, or assisted members of his gang in felonious criminal conduct that is distinct from his otherwise misdemeanor conduct of carrying a loaded firearm in public or carrying a concealed weapon on his person. This conclusion applies to the substantive charge that defendant is an active participant of a criminal street gang (§ 186.22(a)) and to the gun offenses that elevate to felonies only upon proof that defendant satisfied Robles’s requirements under

section 186.22(a). I. FACTS At 3:15 a.m., Officer Thomas Carney of the Buena Park Police Department noticed defendant riding a bicycle without the required lights. When Officer Carney illuminated defendant with a spotlight, defendant looked at the officer, shook his head, turned his bicycle around, rode to the back of a nearby restaurant, and dropped his bicycle. Despite Officer Carney’s command to stop, defendant ran to a wall and jumped over it. As Officer Carney went over that wall in pursuit, he noticed a “glaring object” in a planter near where defendant had scaled the wall.

From that planter police retrieved a .45-caliber Ruger Vaquero firearm that contained five bullets. The gun, which was dry even though the dirt in the planter was wet, did not belong to the occupants of the house in whose yard it was located. That gun and four others had been stolen earlier. The owner of the stolen guns testified that he did not believe defendant had taken them. A second officer located defendant crouched by a wall in a yard a few houses away from where the gun was found.

Detective Chlebowski, a member of a “tri agency gang enforcement team,” testified that he believed defendant was an active member in the Baker Street gang and that defendant was in a rival gang’s territory when he was arrested.

Chlebowski acknowledged that defendant was alone when arrested, defendant was not in contact with other gang members at that time, there was no evidence linking the Ruger Vaquero with any other gang member, and only defendant “would know why he was carrying that gun on that day.” Chlebowski testified that Baker Street gang members recently had been involved in various felony offenses, but he presented no evidence that police had reason to believe defendant was aware of, or involved in, any of the gang’s felonious conduct.

Defendant was charged with the following four felonies: active participation in a gang (§ 186.22(a)); active gang member carrying a loaded firearm in public (§ 12031(a)(2)(C)); active gang member carrying concealed firearm on his person (§ 12025(a)(2); § 12025(b)(3)); and receiving stolen property (§ 496, subd. (a)). The information also charged defendant with one misdemeanor, resisting and obstructing an officer (§ 148, subd. (a)(1)).

In conjunction with the loaded firearm charge, the information alleged that defendant committed the offense “for the benefit of, at the direction of, and in association with BAKER STREET, a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by members of that gang” (§ 186.22, subd. (b)(1)). The jury found defendant guilty of being an active participant in a criminal street gang (count 5), the gang-related elevated felony gun offenses (counts 1 and 2), and resisting arrest (count 4).

The jury found defendant not guilty of receiving stolen property, and it found not true the allegation that defendant had carried the loaded weapon “for the benefit of, at the direction of, or in association with any criminal street gang.” The Court of Appeal affirmed the elevation of defendant’s misdemeanor gun offenses to felonies pursuant to sections 12031(a)(2)(

C) and 12025(b)(3). It also affirmed the misdemeanor resisting arrest conviction. It reversed the count 5 street terrorism conviction on the basis that it was a lesser included offense of count 1, and it stayed count 2 pursuant to

section 654. We granted review. II. DISCUSSION Defendant contends that, in order to establish the substantive offense of active participation in a criminal street gang, the People must prove that he promoted, furthered, or assisted in felonious conduct by members of his gang distinct from his otherwise misdemeanor offense of carrying a firearm in public in order to meet the elements of the substantive offense under

section 186.22(a). Defendant also contends the trial court’s instructions improperly eliminated that requirement with regard to each of the three gang-related charges. We agree. A. The Relevant Statutes and Jury Instructions As noted ante,

section 186.22(

a) provides that “[a]ny person who actively participates in any criminal street gang with knowledge that its members 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,” shall be punished either for a misdemeanor or for a felony. (Italics added.) With regard to the substantive offense of active participation in a criminal street gang charged in count 5 (§ 186.22(a)), the trial court instructed the jury, in part, that “[fjelonious criminal conduct includes carrying a loaded firearm in a public place by a gang member ... or.. . carrying a concealed firearm by a gang member.” (Italics added.) Carrying a loaded firearm in a public place is generally a misdemeanor. (§ 12031, subd. (a)(1), (2)(G).) The crime elevates to a felony if certain conditions are met.

One such condition is “[w]here the person is an active participant in a criminal street gang, as defined in subdivision (

a) of

Section 186.22 ____” (§ 12031(a)(2)(C).) With regard to the felony loaded-firearm offense charged in count 1 (§ 12031(a)(2)(C)), the prosecution submitted, and the trial court gave, a modified version of CALJIC No. 12.54.1, in relevant part, as follows: “Every person who, with knowledge of its presence, unlawfully carries a loaded firearm on his person while in any public place and that person is an active participant in a criminal street gang, and willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, is guilty of the violation of Penal Code

section 12031, subdivision (a)(2)(C), which is a crime, [f] . . . [][] In this instruction, the term ‘active participant’ means that the person must have a relationship with the criminal street gang that is more than in name only, passive, inactive, or purely technical. [][] Felonious criminal conduct, the term here includes possession of a loaded or concealed firearm. . . .” (Italics added.) The trial court then instructed the jury, that, in order to prove the felony offense of carrying a loaded firearm in public, “each of the following elements must be proved: Number one, a person carried a loaded firearm on his person while on a public street or in a public place.

Number two, the person had knowledge of the presence of the firearm and number three, at the time the person was an active participant in a criminal street gang. Number four, the members of that gang engaged in or have engaged in a pattern of criminal gang activity. Number five, the person knew that the gang members engaged in or have engaged in a pattern of criminal gang activity.

And number six, that the person either directly and actively committed or aided and abetted members of that gang in committing the crime[] of carrying a loaded firearm in public while being a gang member.” (Italics added.) The trial court then reiterated that “[fjelonious criminal conduct includes carrying a loaded firearm in public by a gang member.” B. The Robles and Castenada Decisions As stated above,

section 12031(a)(2)(

C) provides, in relevant part, that the offense of carrying a loaded firearm in a public place elevates to a felony “[w]here the person is an active participant in a criminal street gang, as defined in subdivision (

a) of

Section 186.22 . ...” In Robles, we noted that, “[c]ontrary to the express language of

section 12031(a)(2)(C), however, subdivision (

a) of

section of 186.22 . . . does not at all define the statutory phrase ‘an active participant in a criminal street gang.’ ” (Robles, supra, 23 Cal.4th at p. 1111.) In People v. Castenada (2000) 23 Cal.4th 743 [97 Cal.Rptr.2d 906, 3 P.3d 278], we held that one of the elements of

section 186.22(

a) is “ ‘active[] participa[tion] in any criminal street gang,’ ” which means “defendant’s involvement with the gang is more than nominal or passive . . . .” (People v. Castenada, at p. 745.) In Robles, we construed “section 12031(a)(2)(C)’s phrase ‘active participant in a criminal street gang, as defined in subdivision (

a) of

Section 186.22’ as referring to the substantive gang offense defined in

section 186.22(a).” (Robles, supra, 23 Cal.4th at p. 1115.) The substantive offense defined in

section 186.22(

a) has three elements. Active participation in a criminal street gang, in the sense of participation that is more than nominal or passive, is the first element of the substantive offense defined in

section 186.22(a). The second element is “knowledge that [the gang’s] members engage in or have engaged in a pattern of criminal gang activity,” and the third element is that the person “willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.” (§ 186.22(a).) Therefore, Robles held that “carrying a loaded firearm in public becomes a felony under

section 12031(a)(2)(

C) when a defendant satisfies the elements of the offense described in

section 186.22(a)” by “ ‘actively participating] in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity’ and ‘willfully promoting], furthering] or assisting] in any felonious criminal conduct by members of that gang.’ (§ 186.22(a).)” (Robles, supra, 23 Cal.4th at p. 1115.) C. Application of Robles When a Gang Member Is Charged with a Misdemeanor Gun Offense Robles suggests that mere proof that defendant is more than a nominal member of a criminal street gang and that he committed the misdemeanor offense of carrying a loaded firearm in public is not sufficient to satisfy the elements of

section 186.22(

a) or to elevate a

section 12031, subdivision (a)(1) misdemeanor violation to a felony under

section 12031(a)(2)(

C) by operation of

section 186.22(a). In the present case, we hold that, in order to prove the elements of the substantive offense defined in

section 186.22(a), the prosecution must prove that defendant (1) is more than a nominal member of a criminal street gang, that (2) he had “knowledge that its members engage in or have engaged in a pattern of criminal gang activity,” and that (3) he “willfully promot[ed], furthered], or assisted] in . . . felonious criminal conduct by members of that gang” (§ 186.22(a), italics added) that is distinct from his otherwise misdemeanor conduct of carrying a loaded weapon in public. In other words, all of

section 186.22(a)’s elements must be satisfied, including that defendant willfully promoted, furthered, or assisted felonious conduct by his fellow gang members before

section 12031(a)(2)(

C) applies to elevate defendant’s

section 12031, subdivision (a)(1) misdemeanor offense to a felony. Stated conversely,

section 12031(a)(2)(

C) applies only after

section 186.22(

a) has been completely satisfied by conduct distinct from the otherwise misdemeanor conduct of carrying a loaded weapon in violation of

section 12031, subdivision (a)(1). Therefore, defendant’s misdemeanor conduct— being a gang member who carries a loaded firearm in public—cannot satisfy

section 186.22(a)’s third element, felonious conduct, and then be used to elevate the otherwise misdemeanor offense to a felony. The People acknowledge that a prior misdemeanor conviction under

section 186.22(

a) cannot satisfy the elements of

section 186.22 or the elements of

section 12031(a)(2)(C). They concede that “misdemeanor convictions do not constitute ‘felonious criminal conduct[,]’ [s]o a person with a prior misdemeanor conviction for

section 186.22, subdivision (

a) is not in violation of

section 12031, subdivision (a)(2)(C), unless the current charged firearm possession itself constitutes ‘felonious criminal conduct’ . . . .” It logically follows that misdemeanor conduct similarly cannot constitute “felonious criminal conduct” within the meaning of

section 186.22. The same logic applies with equal force to the interplay between

section 186.22(

a) and

section 12025(b)(3), the

section that elevates the misdemeanor offense of carrying a concealed firearm on one’s person (§ 12025(a)(2)) to a felony if committed by “an active participant in a criminal street gang, as defined in subdivision (

a) of

Section 186.22.” (§ 12025(b)(3).) In Robles we used rules of statutory construction in analyzing the meaning of this phrase in the context of

section 12031(a)(2)(C). Sections 12025(b)(3) and 12031(a)(2)(

C) were both enacted as part of the Anti-Street Crimes Act of 1995, and they both focus on carrying a gun. (Stats. 1996, ch. 787, §§ 1, 2, 3, pp. 4152, 4153.) “It is an established rule of statutory construction that similar statutes should be construed in light of one another [citations], and that when statutes are in pari materia similar phrases appearing in each should be given like meanings. [Citations.]” (People v. Caudillo (1978) 21 Cal.3d 562, 585 [146 Cal.Rptr. 859, 580 P.2d 274], overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 229, 237, fn. 6 [83 Cal.Rptr.2d 533, 973 P.2d 512].) We therefore apply our

interpretation of

section 12031(a)(2)(

C) in Robles to the identical language found in

section 12025(b)(3). Thus, there must be evidence that a defendant promoted, furthered, or assisted felonious conduct by other gang members distinct from his otherwise misdemeanor offense of carrying a concealed firearm on his person to elevate the offense to a felony pursuant to

section 12025(b)(3). Without the additional evidence, the prosecution cannot satisfy

section 186.22(a)’s elements, and the misdemeanor offense of carrying a concealed firearm cannot be elevated to a felony under

section 12025(b)(3). In the present case, in instructing the jury with regard to the substantive offense of active participation in a criminal street gang charged in count 5 (§ 186.22(a)), the trial court stated that “[fjelonious criminal conduct includes carrying a loaded firearm in a public place by a gang member, possession of stolen property or . . . carrying a concealed firearm by a gang member,” and that “[i]n order to prove this crime, each of the following elements must be proved; [(fl] 1. A person actively participated in a criminal street gang; [f] 2.

The members of that gang engaged in or have engaged in a pattern of criminal gang activity; [<J[] 3. That person knew that the gang members engaged in or have engaged in a pattern of criminal gang activity; and [][] 4.

That person either directly and actively committed or aided and abetted other members of that gang in committing the crime[] of carrying a loaded firearm.” (Italics added.) The count 5 instructions removed the element of involvement in felonious criminal conduct and required the jury to find that defendant committed or aided and abetted a misdemeanor offense, namely, carrying a loaded firearm in public (§ 12031, subd. (a)(1)), rather than a felony offense as is required by

section 186.22(a). Similarly, with regard to the felony loaded-firearm offense charged in court 1, and the felony concealed-firearm offense charged in count 2, the trial court erroneously instructed that, with regard to the required finding that defendant “willfully promote[d], further[ed], or assisted] in any felonious criminal conduct by members of [his] gang” (§ 186.22(a)), “[flelonious criminal conduct, the term here includes possession of a loaded or concealed firearm.” (Italics added.) The instructions on the felony gun offenses omitted an element because, in the list of the elements necessary to prove a violation of

section 12031(a)(2)(

C) and a violation of

section 12025(b)(3), the instructions required the jury to find only that defendant committed, or aided and abetted a gang member in committing, a misdemeanor, rather than that defendant had engaged in felonious criminal conduct. An instructional error that improperly describes or omits an element of the crime from the jury’s consideration is subject to the “harmless error” standard of review set forth in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824]. (People v.

Flood (1998) 18 Cal.4th 470, 502-504 [76 Cal.Rptr.2d 180, 957 P.2d 869].) We thus consider whether it appears beyond a reasonable doubt that the instructional error did not contribute to the jury’s verdict. (Chapman v. California, supra, 386 U.S. at p. 24.) Applying the Chapman standard, we conclude that the trial court’s instructions regarding the third element of

section 186.22(

a) were prejudicial as to all three gang-related felony counts. The jury found defendant not guilty of the felony receiving-stolen-property charge, and, here, as in Robles, the prosecution presented no evidence that defendant knew of, or was involved in, the prior felonious conduct by his gang members. (Robles, supra, 23 Cal.4th at pp. 1110, 1115.) “[Sjection 186.22(

a) limits liability to those who promote, further, or assist a specific felony committed by gang members and who know of the gang’s pattern of criminal gang activity.” (People v. Castenada, supra, 23 Cal.4th at p. 749.) Once the jury found defendant was not guilty of receiving stolen property, there was no evidence before it that suggested defendant engaged in any felonious conduct, either concurrently with, or prior to, his misdemeanor gun offenses. Accordingly, it is apparent that the instructional error affected the three verdicts that rested on gang-related evidence.

We conclude that the trial court committed prejudicial error when it removed an essential element from its instructions defining

section 186.22(a), and that, in turn, the instructional error regarding

section 186.22(

a) prejudicially removed that same element from its instructions defining sections 12031(a)(2)(

C) and 12025(b)(3). Accordingly, defendant’s convictions as to counts 1 and 2 must be reversed. Count 5 already has been reversed by the Court of Appeal, albeit on other grounds. Defendant’s

section 148, subdivision (a)(1) misdemeanor conviction is unaffected by this conclusion. in. CONCLUSION We reverse in part and affirm in part the judgment of the Court of Appeal. We remand the matter to the Court of Appeal for further proceedings consistent with this opinion. George, C. L, Kennard, J., Werdegar, J., and Moreno, L, concurred. All further statutory references are to the Penal Code.

Section 186.22, subdivision (a), provides that “[a]ny person who actively participates in any criminal street gang with knowledge that its members 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,” shall be punished either as a misdemeanor or as a felony. Throughout this opinion, we refer to

section 186.22, subdivision (

a) as

section 186.22(a), to

section 12031, subdivision (a)(2)(

C) as

section 12031(a)(2)(C), to

section 12025, subdivision (a)(2) as

section 12025(a)(2), and to

section 12025, subdivision (b)(3) as

section 12025(b)(3).

Section 12025(a)(2) defines the misdemeanor offense of carrying a concealed firearm. Subdivision (b)(3) of

section 12025 elevates the offense to a felony if committed by “an active participant in a criminal street gang, as defined in subdivision (

a) of

Section 186.22.” In order to simplify our analysis of the single legal issue before us, we discuss the effect of our holding regarding the proof required to satisfy the elements of

section 186.22(

a) on defendant’s conviction under

section 12025(b)(3) later in this opinion. We do not discuss the inclusion of “possession of stolen property” in the trial court’s list of “felonious criminal conduct” because defendant was found not guilty of receiving stolen property in this case. In order to construe the statutory language “as defined in subdivision (

a) of

Section 186.22,” we undertook to determine what the legislative intent was in drafting that language as used in

section 12031(a)(2)(C). (Robles, supra, 23 Cal.4th at p. 1111.) We found that “the legislative history of

section 12031(a)(2)(

C) g[ave] no clear guidance regarding” the Legislature’s intended meaning. (Id. at p. 1114.) Consequently, we looked to the following rule of statutory construction: “When, as here, the language of a penal law is reasonably susceptible of two

interpretations, we construe the law ‘as favorably to criminal defendants as reasonably permitted by the statutory language and circumstances of the application of the particular law at issue.’ [Citations.]” (Id. at p. 1115.) Judicial Council of California Criminal Jury Instructions

(2007) CALCRIM No. 1400 contains the standard jury instruction for the crime of active participation in a criminal street gang. We note that, in the present case, the jury also specifically found that defendant was not acting on behalf of his gang while he was carrying a loaded gun on the date he was arrested. We do not address the issue raised in briefing regarding whether the felonious conduct requirement in

section 186.22(

a) can be satisfied with conduct that occurs contemporaneously with otherwise misdemeanor gun offenses because the record does not contain evidence that defendant Robert Anthony Lamas, Jr., engaged in any felonious conduct, either concurrently with, or prior to, his misdemeanor gun offenses.