APPEAL from a judgment of the Superior Court of Merced County, No. CRM021171. John D. Kirihara, Judge.
Barbara A. Smith, 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, and Kathleen A. McKenna, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Daniel Maurice Johnson, a ward of the juvenile court, was charged with two counts of felony possession of a firearm (Pen. Code,  former § 12021, subd. (e), & § 29820, subd. (b); counts 1 & 4), two counts of felony possession of ammunition (former § 12316, subd. (b)(1), & § 30305, subd. (a)(1); counts 2 & 5), and two counts of active participation in a criminal street gang (§ 186.22, subd. (a); counts 3 & 6). On December 6, 2012, the jury convicted him on all counts. On February 1, 2013, the trial court denied probation, sentenced defendant to two years eight months in prison on counts 3 and 6,  and stayed execution of punishment on the remaining counts.
On appeal, defendant contends that the evidence did not sufficiently support his convictions for gang participation on counts 3 and 6. In view of People v. Rodriguez (2012) 55 Cal.4th 1125 [150 Cal.Rptr.3d 533, 290 P.3d 1143] (Rodriguez), we reverse these convictions because substantial evidence did not establish that defendant promoted, furthered, or assisted in the perpetration of felonious conduct by at least two gang members.
STATEMENT OF FACTS
I. Prosecution case-in-chief
a. Counts 1 through 3
On September 9, 2011, around 1:00 a.m., Officer Moses Nelson observed defendant, Steven Mays, Jr.,  and Clemmon High wearing “dark” and “heavy” clothing and walking northbound on G Street near a gas station. As Nelson approached in his patrol vehicle, the three men, who were originally “within four or five feet of each other, ” huddled “within 18 inches to two feet
from each other.” Nelson shined the spotlight on the group, recognized Mays as a juvenile parolee and documented Merced Gangster Crip, and sounded the air horn. The three men continued to walk. Nelson exited the vehicle and ordered them to stop. Defendant and High “took three or four steps and stopped” while Mays, who was ahead of them by at least seven feet, continued to walk until Nelson yelled at him a second time. Nelson asked defendant if he was on parole and defendant answered, “Yeah. I’m on parole.” Aware of Mays’s history of firearm-related offenses, Nelson drew his weapon and radioed for backup. Other officers arrived on the scene and detained the three men. Based on “how fast they were walking and didn’t want to stop, ” Nelson suspected that defendant, Mays, and High were “trying to create space” and retraced their steps on G Street. He found a loaded.22 caliber revolver next to the gas station. Subsequent DNA testing of the firearm revealed a mixture containing defendant’s alleles.
Defendant made three jail calls between September 9 and 10, 2011. In the first call, Tyriqa Turner,  his girlfriend, asked, “Danny, did they caught you with a gun?” Defendant replied, “Yeah.” He recounted: “As soon as we stepped outside—as soon as we stepped outside. We went down the stairs, I told him, I’m like, ‘Hey cuz,  nigger, we tripping.’ I’m like, ‘I just thought about it. You said you seen hella police.’ I’m like, ‘Nigger, I’m getting text messages saying the police stopping everybody.’ I’m like, ‘Cuz, we tripping.’ So … I don’t even know how they even talked me into it. He like, ‘Nigger, come on. Nigger, fuck that shit. Walk with me, nigger. I—I got this—I got you.’ He—and he told me like, ‘Nigger, if the police come I’m gonna run. Worst come to worst I’m gonna run, you feel me?’ They came. Nigger—that nigger didn’t even run, Cuz.”
In the second call, Turner asked defendant, “Was you holdin’ it?” He answered, “No. I tossed it. But they got my fingerprints.”
In the third call, defendant told Avery Lewis,  his brother-in-law:
“Cuz came over, you know, cats came over, and shit, right? I … told the nigger, I’m like, Cuz, you feel me, I’m gonna get us a ride, just wait. But he
on some, uh, urgent ass, ‘I’m finna leave, I’m finna leave, ’ you feel me? I don’t wanna let the nigger leave by himself. ‘Cause you know what I’m sayin’, I’m the only nigger with heat,  too. You understand? [¶] … [¶] Only nigger, you understand? So I’m not gonna let this nigger leave by himself. All right. Tell the nigger I’m like, ‘Man, let’s just wait, Cuz, you feel me?’ But then he’s tryin’ to—he's trying to … and leave it, though, you feel me? I’m like, hell, no nigger. What the fuck? So you feel me we leave, we get downstairs I stop him and I tell him, like, ‘Hey, we trippin’ right now.’ So I let the nigger know like that we done been told from five different people, literally, though, five different people that they hide, and they stop, and everything; you feel me? He like, ‘Man, fuck it. I’m gonna break, I’m gonna break.’ He told me he was gonna run, you feel me? So we walk, and nigger, we get right, right by that big-ass gas station by the train tracks on G Street, you know what I’m talkin’ about? [¶] … [¶]
“Nigger, this nigger (Moses) happened to hit the corner; you feel me? [¶] … [¶] This nigger pulled up like, uh, I, I’d already, you feel me? I had already did my shit with, uh, with the bitch; you feel me? [¶] … [¶] I already told the bitch—I’d already told the bitch to get off, nigger. Uh, so I’m thinkin’ (Cuz) you feel me? Get on it ‘cause he said he was gonna get on and all this shit, you feel me? Nigger didn’t even get on. He just sat there. I’m like, ‘Fuck, that nigger (Moses) whip out. This nigger (Steve), (Stevie), put your hands up. I’ll fuckin’ shoot you right now, (Stevie), I’m not playin’. (Stevie) don’t make me do it, you feel me?’ [H]e was cryin’, Cuz. I … really, nigger, really so mad. Like I really let this nigger—I really let this nigger talk me out of my freedom, you know? He just—he just keep tellin’ me, ‘My fault, my fault, I’m sorry, nigger.’ That ain’t gonna say nothin’. Every time a nigger go down I always, I always get the worse end of the deal … everything, my nigger.… [¶] … [¶]
“Yeah. Nigger, you know that gas station right there? [¶] … [¶] You know there’s a camera right there? [¶] … [¶] It’s a big-ass camera overlookin’ that whole little area right there, nigger. [¶] … [¶] Yeah, it’s—nigger, tell everybody it’s a whole… [¶] … [¶] [I]t’s a big ass—it’s a big ass camera. And it’s overlookin’ all of that my nigger. [¶] … [¶] And it’s a camera on (Gerrard), too. You feel me? [¶] … [¶] Yeah, nigger. There’s a camera on (Gerrard), too, my nigger. So let, let everybody know, man. When you niggers is around there. Nigger, I thought I was good. I ...