People v. Bishop CA3

Filed 8/18/14 P. v. Bishop CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sutter) ----

THE PEOPLE, C067374

Plaintiff and Respondent, (Super. Ct. No. CRF08-3480)

v.

RAYSHON LEVELLE BISHOP,

Defendant and Appellant.

Defendant Rayshon Levelle Bishop was involved in a gang-related incident in which a rival gang member was killed. A jury acquitted defendant of murder, but it deadlocked at 11 to 1 in favor of a voluntary manslaughter conviction. The jury found defendant guilty of the substantive gang crime. (Pen. Code, § 186.22, subd. (a).)1 The court declared a mistrial on the manslaughter count and sentenced defendant to a determinate term of 11 years for the gang crime.

1 Hereafter, unspecified code citations are to the Penal Code.

1

On appeal, defendant raised only a sentencing issue in his opening brief. However, we requested supplemental briefing on whether the jury was properly instructed on the elements of the gang crime. We conclude the trial court prejudicially erred by failing to properly instruct the jury concerning the “felonious criminal conduct” element of the gang crime. We therefore reverse the judgment. We remand for retrial on the gang crime count because, contrary to defendant’s contention in his supplemental briefing, there was sufficient evidence to sustain a conviction on that count. In light of the reversal, we need not consider defendant’s sentencing contention. BACKGROUND We recount the relevant facts later, in the Discussion, as they relate to their sufficiency to support a gang crime conviction. The district attorney filed an information charging defendant with murder (§ 187, subd. (a)) and the gang crime (§ 186.22(a)). The information also alleged that defendant has a prior serious felony conviction for criminal threats (§§ 422; 667, subd. (a); 1192.7, subd. (c)) and a prior prison term based on the same criminal threats conviction (§ 667.5, subd. (b).) A jury acquitted defendant of murder, deadlocked 11 to 1 for conviction as to the lesser included voluntary manslaughter offense, and convicted him of the gang crime. The trial court found true the prior serious felony and prior prison term allegations. And the prosecution elected not to prosecute further the manslaughter count. The trial court sentenced defendant on the gang crime, as a felony, to the upper term of three years, doubled to six years under the “Three Strikes” law. (§ 667, subd. (e)(1).) The court imposed an additional five-year term because the defendant committed a serious felony and had a prior serious felony conviction. (§ 667, subd. (a).) And the court imposed but stayed a one-year term for the prior prison term. (§ 667.5, subd. (b).) The resulting aggregate, unstayed sentence was 11 years in state prison.