Does the Attorney General have to reverse the conviction of a defendant on a charge of possession of a firearm with intent to endanger life?

The Attorney General concedes that this was error and that it was prejudicial, and we agree. (See People v. Wilkins (2013) 56 Cal.4th 333, 348 [reversal for misinstruction on element of crime unless error was harmless beyond a reasonable doubt].) As given, the instruction allowed the jury to find the "felonious criminal conduct" element of the gang crime based on the evidence about the gang's primary activities or pattern of criminal conduct. We have found nothing in the record, however, to suggest that defendant actually promoted, furthered, or assisted in the commission of those crimes.

Because the trial court erred in its instruction to the jury on the "felonious criminal conduct" element of the gang crime and the error was prejudicial, we must reverse the conviction. That raises the issue of whether the count can be retried on remand, and defendant argues that it cannot be retried because there is insufficient evidence to support a conviction on that count. (See People v. Hill (1998) 17 Cal.4th 800, 848-849 [retrial barred when evidence insufficient].)