People v. Rodriguez , 55 Cal. 4th 1125 ( 2012 )

Filed 12/27/12
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S187680
v. )
) Ct.App. 3 C060227
JOE RODRIGUEZ, JR., )
) Yuba County
Defendant and Appellant. ) Super. Ct. No. CRF07288
____________________________________)
We are again called upon to construe Penal Code section 186.22,1 the
California Street Terrorism Enforcement and Prevention Act (the STEP Act)
(§ 186.20 et seq.), involving the activity of criminal street gangs. At issue here is
section 186.22, subdivision (a) (section 186.22(a)): “Any 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 . . . . ” (Italics added.)2
We granted review to resolve a conflict in the Courts of Appeal. Under the
language of the italicized phrase, does a gang member violate section 186.22(a) if
1 Further statutory references are to the Penal Code, unless otherwise noted.
2 For convenience, we will sometimes refer to section 186.22(a) as the “gang
participation” offense.
1
he commits a felony, but acts alone? The Court of Appeal below concluded that
he does not. We agree and affirm the judgment of the Court of Appeal.
BACKGROUND
Defendant was a Norteño gang member from Woodland whose girlfriend
lived in Marysville. On May 10, 2007, around 10:30 p.m., Stanley Olsen stepped
out of his truck in Marysville. Someone behind him spoke. Olsen turned and saw
defendant approaching him. Olsen asked defendant whether Olsen knew him.
Defendant responded with a racial epithet and threatened to kill Olsen.
Defendant moved so close to Olsen that the chests of the two men were
touching. Defendant demanded Olsen‟s money and again threatened him. When
Olsen told defendant to go away, defendant punched him in the jaw. The men fell
to the ground and defendant continued to beat Olsen. Olsen was ultimately able to
get up and run. Eventually, police found defendant in his girlfriend‟s nearby
apartment, hiding under a bed.
Two gang experts testified that robbery was a primary activity of the
Norteño gang and both opined that the attempted robbery of Olsen was committed
for the benefit of the gang. There was no evidence that defendant acted with
anyone else.
The jury convicted defendant of attempted robbery and the separate felony
of gang participation. It also found true the enhancement allegation that defendant
committed the attempted robbery for the benefit of the gang. The court found that
defendant had suffered a prior strike conviction and served a prior prison term.3
3 Sections 664, 211; section 186.22, subdivisions (a), (b)(1); sections 667,
subdivisions (a)-(d), 1170.12, subdivisions (b), (c); and section 667.5, subdivision
(b).
2
Before sentencing, the trial court granted defendant‟s new trial motion as to
the gang enhancement allegation under section 186.22, subdivision (b)(1) (section
186.22(b)(1)) for lack of substantial supporting evidence. The prosecution did not
seek to retry the allegation, and the court imposed a prison term of eight years four
months.
A divided Court of Appeal reversed defendant‟s conviction for the separate
count of gang participation under section 186.22(a). Over a dissent, the majority
concluded that defendant‟s commission of the attempted robbery while acting
alone did not fall within the statute. We granted the Attorney General‟s petition
for review and now affirm.
DISCUSSION
“Underlying the STEP Act was the Legislature‟s recognition that
„California is in a state of crisis which has been caused by violent street gangs
whose members threaten, terrorize, and commit a multitude of crimes against the
peaceful citizens of their neighborhoods.‟ (Pen. Code, § 186.21.) The act‟s
express purpose was „to seek the eradication of criminal activity by street gangs.‟
(Ibid.)” (People v. Gardeley (1996) 14 Cal.4th 605, 609 (Gardeley).) In pursuit
of this goal, the STEP Act focuses upon “patterns of criminal gang activity and
upon the organized nature of street gangs, which together, are the chief source of
terror created by street gangs.” (§ 186.21.)4
4 Defendant seeks judicial notice of various legislative materials concerning
section 186.22. Exhibits A through C, which counsel obtained from the
Legislative Intent Service, reflect statements made by the author of the bill that
would become section 186.22. Exhibit A is a copy of a letter written by the author
to a committee chairperson, exhibit B reflects the author‟s statements to the
Senate, and exhibit C shows the author‟s statements to the Senate Judiciary
Committee. We deny judicial notice as to these items, which, “although bearing a
Legislative Intent Service stamp, are not certified copies.” (In re Marriage of
(footnote continued on next page)
3
In addressing the problem, the STEP Act created a substantive offense,
section 186.22(a), which punishes “[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 . . . .”
The elements of the gang participation offense in section 186.22(a) are:
First, active participation in a criminal street gang, in the sense of participation
that is more than nominal or passive; second, knowledge that the gang‟s members
engage in or have engaged in a pattern of criminal gang activity; and third, the
willful promotion, furtherance, or assistance in any felonious criminal conduct by
(footnote continued from previous page)
Pendleton & Fireman (2000) 24 Cal.4th 39, 47, fn. 6; see Quelimane Co. v.
Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 46, fn. 9 (Quelimane Co.); Evid.
Code, §§ 1401, 1530.) Further, “the views of individual legislators as to the
meaning of a statute rarely, if ever, are relevant . . . .” (Quelimane Co., at pp. 45-
46, fn. 9.)
Exhibits D, E, and G are copies of Legislative Counsel‟s summary digests
of the Senate and Assembly versions of the bill and the final versions enacted by
the Legislature. “A request for judicial notice of published material is
unnecessary.” (Quelimane Co., supra, 19 Cal.4th at pp. 45-46, fn. 9.) We
considered similar materials in People v. Albillar (2010) 51 Cal.4th 47 and People
v. Castenada (2000) 23 Cal.4th 743 with respect to section 186.22 without taking
judicial notice of them. (See Albillar, at pp. 56-57; Castenada, at pp. 749-750.)
“We therefore consider the request for judicial notice as a citation to those
materials that are published.” (Quelimane Co., at pp. 45-46, fn. 9.)
Finally, exhibit F is a copy of a report dated September 27, 1988, from the
Legislative Counsel to the Governor regarding the enrolled bill. As we have
verified the authenticity of this item from legislative history materials in our
possession, we grant defendant‟s judicial notice request as to exhibit F only. (See
Hisel v. County of Los Angeles (1987) 193 Cal.App.3d 969, 978, fn. 13 [noting
that the Legis. Counsel‟s report to the Governor regarding an enrolled bill is
judicially noticeable].)
4
members of that gang. (People v. Lamas (2007) 42 Cal.4th 516, 523 (Lamas).) A
person who is not a member of a gang, but who actively participates in the gang,
can be guilty of violating section 186.22(a). (§ 186.22, subd. (i).) The offense is
punishable as a felony with a state prison term of 16 months, two years, or three
years, or as a misdemeanor. (§ 186.22(a).)5
Mere active and knowing participation in a criminal street gang is not a
crime. Applying the third element of section 186.22(a), a defendant may be
convicted of the crime of gang participation only if he also willfully does an act
that “promotes, furthers, or assists in any felonious criminal conduct by members
of that gang.” (§ 186.22(a).) This case concerns that third element. Specifically,
we must determine whether the third element is satisfied when a gang member
commits a felony while acting alone.
The parties frame their disagreement around the meaning of the words
“promotes, furthers, or assists” in the third element of section 186.22(a). The
Attorney General argues the words “promote” and “further” apply to perpetrators
of felonious criminal conduct as well as aiders and abettors, and encompass the
perpetrator who acts alone. Defendant argues the words “promotes, furthers, or
assists” are confined to the action of aiding and abetting, and thus require the
involvement of more than one gang member. As we shall explain, it is significant
5 The STEP Act also created a sentencing enhancement. Section
186.22(b)(1) imposes additional penalties for “any person who is convicted of a
felony committed for the benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote, further, or assist in any
criminal conduct by gang members . . . .” Unlike the substantive offense, the
enhancement does not require proof of participation in a gang. It is further
distinguished from the substantive offense by applying only to gang-related
offenses and by requiring the defendant to act with the specific intent to promote,
further, or assist any criminal conduct by gang members.
5
that the offense requires a defendant to promote, further, or assist members of the
gang.
“When interpreting statutes, we begin with the plain, commonsense
meaning of the language used by the Legislature. [Citation.] If the language is
unambiguous, the plain meaning controls.” (Voices of the Wetlands v. State Water
Resources Control Bd. (2011) 52 Cal.4th 499, 519.) “[W]henever possible,
significance must be given to every word [in a statute] in pursuing the legislative
purpose, and the court should avoid a construction that makes some words
surplusage.” (Agnew v. State Bd. of Equalization (1999) 21 Cal.4th 310, 330.)
“[W]e may reject a literal construction that is contrary to the legislative intent
apparent in the statute or that would lead to absurd results . . . .” (Simpson Strong-
Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 27.)
This statute has been the object of much appellate parsing. As a result,
certain words and phrases in the third element of section 186.22(a) have already
been judicially construed. In People v. Albillar, supra, 51 Cal.4th 47 (Albillar),
we considered whether the phrase “any felonious criminal conduct” includes an
unwritten requirement that the “ „felonious criminal conduct‟ . . . be gang related.”
(Id. at p. 51.) We concluded that it does not. The plain, unambiguous language of
the statute targets any felonious criminal conduct, not felonious gang-related
conduct. (Id. at p. 55.)
As to the phrase “by members of that gang” in section 186.22(a), the Court
of Appeal in People v. Green (1991) 227 Cal.App.3d 692, 699 (Green) observed
that “ „[m]ember‟ and „membership‟ are terms of ordinary meaning, and require
no further definition.” Neither the Attorney General nor defendant argue that
“members of that gang” connotes anything other than its ordinary meaning.
Additionally, “that gang” clearly refers back to the gang in which the defendant is
an active participant.
6
As to the words “promotes, furthers or assists,” neither party disputes their
usual and ordinary meaning. The Attorney General cites People v. Ngoun (2001)
88 Cal.App.4th 432, 436 (Ngoun), in which the Court of Appeal stated: “In
common usage, „promote‟ means to contribute to the progress or growth of;
„further‟ means to help the progress of; and „assist‟ means to give aid or support.
(Webster‟s New College Dict. (1995) pp. 885, 454, 68.)”6
The Attorney General argues that a gang member satisfies the third element
of section 186.22(a) when he commits a felony alone. She observes the statute
does not require that one promote, further, or assist other gang members. This
argument overlooks the language and grammatical structure of the statute. Section
186.22(a) speaks of “criminal conduct by members of that gang.” (Italics added.)
“[M]embers” is a plural noun. The words “promotes, furthers, or assists” are the
verbs describing the defendant‟s acts, which must be performed willfully. The
phrase “any felonious criminal conduct” is the direct object of these verbs. The
prepositional phrase “by members of that gang” indicates who performs the
felonious criminal conduct. Therefore, to satisfy the third element, a defendant
must willfully advance, encourage, contribute to, or help members of his gang
commit felonious criminal conduct. The plain meaning of section 186.22(a)
requires that felonious criminal conduct be committed by at least two gang
6 Defendant relies on the Oxford English Dictionary for similar definitions.
“To assist is „[t]o help, aid: a. a person in doing something‟ or „c. an action,
process, or result.‟ (1 The Oxford English Dict. (2d. ed. 1989) p. 715, col. 2.)”
“To promote means to „[f]urther the growth, development, progress, or
establishment of (anything); to help forward (a process or result); to further,
advance, encourage.‟ 12 The Oxford English Dict., supra, p. 616, col. 3.) To
further means „[t]o help forward, assist (usually things; less frequently persons); to
promote, favour (an action or movement.)‟ (6 The Oxford English Dict., supra,
p. 285, col. 2.)” As these definitions make clear, they are largely tautological.
7
members, one of whom can include the defendant if he is a gang member. (See
§ 186.22, subd. (i).)
The Attorney General acknowledges that section 186.22(a) employs the
plural noun “members” and concedes that to “assist[]” in felonious criminal
conduct “by members of that gang” requires the participation of more than one
person in the criminal act at issue. However, the Attorney General points to
section 7, which states in part that “the singular number includes the plural,” and
argues that a gang member may “promote[]” or “further[]” the felonious conduct
of a member of the gang, namely, the gang member himself, by simply
committing the underlying felony alone. In other words, while conceding that a
person cannot “assist” himself in committing a crime, the Attorney General urges
that a person may “promote” or “further” his own conduct.
Section 7 also cautions, however, that “[w]ords and phrases must be
construed according to the context . . . .” (§ 7, subd. 16.) If the Legislature had
intended to criminalize any felonious criminal conduct committed by any active
and knowing participant, including one acting alone, the phrase “by members of
that gang” would be superfluous. The Legislature could simply have omitted that
phrase and said, “Any person who actively participates in any criminal street gang,
with knowledge that its members have engaged in a pattern of criminal street gang
activity, and who willfully promotes, furthers, or assists in any felonious criminal
conduct, shall be punished . . . .” But that is not what the statute says. We give
significance to every word in the statute actually enacted to implement the
legislative purpose and avoid a construction that makes some words surplusage.
(Agnew v. State Bd. of Equalization, supra, 21 Cal.4th at p. 330.) Because under
section 186.22(a) the felonious conduct that is willfully promoted, furthered, or
assisted need not be gang related (Albillar, supra, 51 Cal.4th at p. 55), it appears
the Legislature purposefully used the phrase “by members of that gang” to qualify
8
the scope of the statute. As we stated in Albillar: “[T]here is nothing absurd in
targeting the scourge of gang members committing any crimes together and not
merely those that are gang related. Gang members tend to protect and avenge
their associates. Crimes committed by gang members, whether or not they are
gang related or committed for the benefit of the gang, thus pose dangers to the
public and difficulties for law enforcement not generally present when a crime is
committed by someone with no gang affiliation. „These activities, both
individually and collectively, present a clear and present danger to public order
and safety . . . .‟ (Pen. Code, § 186.21.)” (Albillar, supra, at p. 55.)
Further, this understanding of section 186.22(a) reflects the Legislature‟s
attempt to avoid any potential due process concerns that might be raised by
punishing mere gang membership.7 In Scales v. United States (1961) 367 U.S.
203 (Scales), the United States Supreme Court addressed the constitutionality of
the membership clause of the Smith Act, which criminalized membership in any
organization advocating the overthrow of the government by force or violence. In
addressing a due process challenge to this provision, Scales stated: “In our
jurisprudence guilt is personal, and when the imposition of punishment on a status
or on conduct can only be justified by reference to the relationship of that status or
conduct to other concededly criminal activity (here advocacy of violent
overthrow), that relationship must be sufficiently substantial to satisfy the concept
of personal guilt in order to withstand attack under the Due Process Clause of the
Fifth Amendment.” (Id. at pp. 224-225, italics added.) The court concluded that,
without more, mere membership in an organization engaged in illegal conduct is
7 We discuss due process principles only to illuminate the Legislature‟s
choice in requiring the participation of more than one gang member in order to
support a conviction under section 186.22(a).
9
not sufficient to establish the required relationship between that membership status
and criminal activity. Scales ultimately held the statute passed constitutional
muster when it was interpreted “to reach only „active‟ members having also a
guilty knowledge and intent, and which therefore prevents a conviction on what
otherwise might be regarded as merely an expression of sympathy with the alleged
criminal enterprise, unaccompanied by any significant action in its support or any
commitment to undertake such action.” (Id. at p. 228.)
We discussed Scales‟s application to section 186.22(a) in People v.
Castenada, supra, 23 Cal.4th 743 (Castenada). There we considered the first
element of section 186.22(a) and resolved what constitutes active gang
participation. In particular, we concluded that one who “ „actively participates in
any criminal street gang‟ ” need not be a leader in that gang as long as the person‟s
involvement “is more than nominal or passive.” (Castenada, at p. 747.)
Castenada observed: “When our Legislature enacted section 186.22(a), which is
at issue here, it was fully cognizant of the guilty knowledge and intent
requirements the high court had articulated in Scales.” (Id. at p. 749.) With
Scales in mind, the Legislature limited “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. Thus, a person who violates section 186.22(a)
has also aided and abetted a separate felony offense committed by gang
members . . . .” (Castenada, at p. 749.) Castenada noted that “[t]hese statutory
elements necessary to prove a violation of section 186.22(a) exceed the due
process requirement of personal guilt that the United States Supreme Court
articulated in Scales . . . .” (Ibid.) We thus rejected the defendant‟s claim that
section 186.22(a) criminalized lawful association since the statute required that “a
defendant „actively participate[]‟ in a criminal street gang while also aiding and
10
abetting a felony offense committed by the gang‟s members.” (Castenada, at p.
751.)
The Legislature thus sought to avoid punishing mere gang membership in
section 186.22(a) by requiring that a person commit an underlying felony with at
least one other gang member. Scales found the membership provision of the
Smith Act constitutional because it criminalized “active” membership coupled
with knowledge of the organization‟s criminal goals and the specific intent that
such goals be furthered. In this context, Scales stated, “we can perceive no reason
why one who actively and knowingly works in the ranks of that organization,
intending to contribute to the success of those specifically illegal activities, should
be any more immune from prosecution than he to whom the organization has
assigned the task of carrying out the substantive criminal act.” (Scales, supra, 367
U.S. at pp. 226-227.) As we observed in Albillar, however, section 186.22(a),
unlike the gang enhancement in section 186.22(b)(1), does not require a specific
intent to further or promote the gang (only knowledge of the gang‟s pattern of
criminal activity). (Albillar, supra, 51 Cal.4th at p. 56.) Further, as previously
noted, Albillar concluded section 186.22(a) does not require that the underlying
felony be gang related. (Albillar, supra, 51 Cal.4th at p. 55.)
It is established, then, that one need not have the specific intent to promote,
further, or benefit the gang to violate section 186.22(a), nor must one commit a
gang-related felony. As we recently observed in People v. Mesa (2012) 54 Cal.4th
191 (Mesa), in considering the STEP Act, “the Legislature was careful to observe
that „mere membership [in a gang] is not punishable under the bill. The United
States Supreme Court has held that mere association with a group cannot be
punished unless there is proof that the defendant knows of and intends to further
its illegal aims. [Citation.] This bill imposes sanctions on active participation in
the gang only when the defendant knows about and specifically intends to further
11
the criminal activity; or where he knows of the criminal activity and willfully
promotes, furthers, or assists it.‟ ” (Mesa, supra, 54 Cal.4th at pp. 196-197, citing
Scales, supra, 367 U.S. at p. 229.) The Legislature thus recognized the
constitutional prohibition against punishing mere gang membership, and its use of
the plural “members” in section 186.22(a) reflected the Legislature‟s attempt to
provide a nexus between the felonious conduct and gang activity that avoided the
concerns raised in Scales. (Cf. Green, supra, 227 Cal.App.3d at pp. 703-704
[rejecting a due process challenge against the third element of section 186.22(a)
where the Attorney General conceded that one “would also have to be criminally
liable as an aider and abettor to any specific crime committed by a member or
members of a criminal street gang”].) The Attorney General‟s interpretation that a
gang member may satisfy the statute simply by committing a felony alone reads
out of the statute the nexus between defendant‟s conduct and gang activity that the
Legislature put in the statute by requiring one act with another gang member.
The Attorney General and the dissenting opinion below relied upon three
Court of Appeal cases to support their position. The court in Ngoun, supra, 88
Cal.App.4th 432, rejected the defendant‟s claim that he could not be convicted of
section 186.22(a) because he directly perpetrated the underlying felonies rather
than aided and abetted another in the commission of those felonies. Ngoun
reasoned in part: “An active gang member who directly perpetrates a gang-related
offense „contributes‟ to the accomplishment of the offense no less than does an
active gang member who aids and abets or who is otherwise connected to such
conduct. Faced with the words the legislators chose, we cannot rationally ascribe
to them the intention to deter criminal gang activity by the palpably irrational
means of excluding the more culpable and including the less culpable participant
in such activity.” (Id. at p. 436.) Ngoun‟s reasoning on this point is
uncontroversial. Nothing in the language of section 186.22(a) would suggest that
12
one may not promote, further, or assist “in any felonious criminal conduct by
members of that gang” by either aiding and abetting other gang members in
committing a felony or by directly committing a felony with other gang members.
Ngoun did not address the present issue of whether one committing a felony alone
may violate section 186.22(a).
Ngoun was, nevertheless, interpreted to cover that situation in People v.
Salcido (2007) 149 Cal.App.4th 356 (Salcido). Salcido challenged the trial court‟s
instruction that the third element of section 186.22(a) would be satisfied if the jury
concluded he “ „willfully promoted, furthered or assisted by either directly and
actively committing a felony offense or aiding and abetting felonious criminal
conduct by members of that gang.‟ ” (Salcido, supra, 149 Cal.App.4th at p. 366.)
Salcido reasoned, in relevant part: “[The defendant] contends Ngoun stands for
the proposition that a „[principal] who commits a crime jointly with other gang
members is equally liable under section 186.22, subdivision (a).‟ Salcido asserts
that subdivision (a) imposes liability on perpetrators only if they commit the crime
in concert with other gang members. In Ngoun, however, we placed no limitation
on our holding. To the contrary, we concluded that the subdivision ‘applies to the
perpetrator of felonious gang-related criminal conduct as well as to the aider and
abettor.‟ [Citation.]” (Id. at p. 368, italics added, citing Ngoun, supra, 88
Cal.App.4th at p. 436.) In People v. Sanchez (2009) 179 Cal.App.4th 1297(Sanchez), the court held that the defendant forfeited the claim that section
186.22(a) required he commit the underlying felony with other gang members, but
suggested, “Even if [that claim] had been raised, however, we would reject it on
the authority of Salcido.” (Sanchez, supra, 179 Cal.App.4th at p. 1308.)
Salcido‟s extension of Ngoun‟s reasoning, to suggest that one who commits
a felony alone may satisfy the third element of section 186.22(a), and Sanchez‟s
endorsement thereof in dictum, are undermined by Albillar, which post-dated all
13
three decisions. Salcido relied upon a suggestion in Ngoun that section 186.22(a)
“applies to the perpetrator of felonious gang-related criminal conduct as well as to
the aider and abettor.” (Ngoun, supra, 88 Cal.App.4th at p. 436, italics added.)
Ngoun further reasoned that “[a]n active gang member who directly perpetrates a
gang-related offense „contributes‟ to the accomplishment of the offense no less
than does an active gang member who aids and abets or who is otherwise
connected to such conduct.” (Ibid., italics added.) Ngoun‟s characterization of
section 186.22(a) as requiring a “gang-related” offense had little bearing on the
issue before it, but that erroneous characterization would change the analysis here.
Had section 186.22(a) required the commission of a “gang-related felony,” then,
as Salcido suggests, there would be little question that due process principles
would not preclude a lone perpetrator‟s conviction under that provision. However,
as we concluded in Albillar, section 186.22(a) does not require the commission of
a gang-related felony. That conclusion fatally undermined Salcido‟s reasoning.8
Although the Attorney General does not so argue, the dissenting opinion
concludes a lone perpetrator may satisfy the third element of section 186.22(a), not
because his or her commission of a felony furthers or promotes his or her own
conduct, but rather because the commission of the felony emboldens fellow gang
members to commit other, unspecified crimes in the future and, thus, “advances
the gang‟s overall felonious purpose.” (Dis. opn. at p. 3, italics omitted.) Initially,
that suggestion seems inconsistent with our prior characterization of section
186.22(a) as requiring the promotion or furtherance of specific conduct of gang
members and not inchoate future conduct. (See Castenada, supra, 23 Cal.4th at
8 We disapprove of People v. Salcido, supra, 149 Cal.App.4th 356, and
People v. Sanchez, supra, 179 Cal.App.4th 1297, to the extent they are
inconsistent with this opinion.
14
p. 749 [“section 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” (italics added)]; see also Lamas, supra, 42 Cal.4th at
p. 526 [quoting Castenada on this point].) More fundamentally, such an
interpretation would upset the balance chosen by the Legislature because it
eliminates the nexus between a defendant‟s felonious conduct and gang activity
that the Legislature has placed in section 186.22(a). Under the dissent‟s view, all
that would be required to satisfy the third element of section 186.22(a) would be
expert testimony that commission of a felony by a gang member would embolden
other gang members to commit felonies. However, it could be maintained that
every time a gang member commits a felony, other members of the gang would be
emboldened to commit felonies as well. Such testimony does little more than
assert that the defendant is a gang member and that gangs, by definition, commit
crimes as part of their primary activities. (See § 186.22, subd. (f).)
The dissent‟s view blurs the distinction between section 186.22(a) and the
enhancement under section 186.22(b)(1). Although the dissent acknowledges that
section 186.22(a) “does not require that the felony committed by the defendant be
for the gang‟s benefit,” the dissent asserts that “surely that statute is violated by a
felony that is for the gang‟s benefit.” (Dis. opn. at p. 5, original italics.) However,
once one recognizes that gang-relatedness is not an element of the offense under
section 186.22(a), it is unclear how evidence that a felony is gang-related, or that
one commits a felony with the intent to benefit the gang, in any way satisfies the
requirements of section 186.22(a). In short, the dissent reads into section
186.22(a) a requirement of gang-relatedness that we expressly held in Albillar did
not exist. (Albillar, supra, 51 Cal.4th at p. 56 [“The Legislature clearly knew how
to draft language limiting the nature of the criminal conduct promoted, furthered,
15
or assisted and could have included such language had it desired to so limit the
reach of section 186.22(a).”].)
Section 186.22(a) and section 186.22(b)(1) strike at different things. The
enhancement under section 186.22(b)(1) punishes gang-related conduct, i.e.,
felonies committed with the specific intent to benefit, further, or promote the gang.
(See Gardeley, supra, 14 Cal.4th at p. 622.) However, “[n]ot every crime
committed by gang members is related to a gang.” (Albillar, supra, 51 Cal.4th at
p. 60.) As such, with section 186.22(a), the Legislature sought to punish gang
members who acted in concert with other gang members in committing a felony
regardless of whether such felony was gang-related. (Albillar, supra, at p. 55[“there is nothing absurd in targeting the scourge of gang members committing
any crimes together and not merely those that are gang related”].)
The Attorney General argues that excluding a lone perpetrator within the
scope of section 186.22(a) would be “absurd.” To illustrate, she posits a scenario
in which a gang leader plans to shoot rival gang members. The gang leader tells
his plan to an active participant in his gang and asks the participant to provide the
gun. The Attorney General complains that if the gang leader then shoots several
rival gang members, he would not be guilty of violating section 186.22(a). She
states that the active participant, who was merely the gang leader‟s aider and
abettor, would be guilty of violating section 186.22(a).
The Attorney General‟s hypothetical is wrong in several respects. If the
active participant is not a gang member, he would be no more guilty of violating
section 186.22(a) than the gang leader because only one member of the gang —
the gang leader — committed the shootings. If, on the other hand, the active
participant is a gang member, then both the gang leader and the participant are
guilty of violating section 186.22(a) as well as crimes relating to the shootings.
The active participant, who aided and abetted the shooting by providing the gun, is
16
treated under the law as a principal. (§ 31.) The shootings would have been
committed by both principals — the gang leader and the active participant.
Contrary to the Attorney General‟s suggestion, our conclusion does not
lead to absurd results. A lone gang member who commits a felony will not go
unpunished; he or she will be convicted of the underlying felony. Further, such a
gang member would not be protected from having that felony enhanced by section
186.22(b)(1), which applies to “any person who is convicted of a felony
committed for the benefit of, at the direction of, or in association with any criminal
street gang, with the specific intent to promote, further, or assist in any criminal
conduct by gang members . . . .” Because the gang enhancement under section
186.22(b)(1) requires both that the felony be gang related and that the defendant
act with a specific intent to promote, further, or assist the gang, these requirements
provide a nexus to gang activity sufficient to alleviate due process concerns. (See
Albillar, supra, 51 Cal.4th at p. 56 [noting differences between §§ 186.22(a) and
186.22(b)(1)].) Furthermore, we note that the lone perpetrator‟s punishment under
the sentencing enhancement would be more substantial than that imposed for a
defendant who violates section 186.22(a).9
9 For example, under section 186.22, subdivision (b)(1)(A), a defendant
receives an additional term of two, three, or four years at the court‟s discretion. If
the underlying offense is a serious felony, as defined in section 1192.7,
subdivision (c), the additional term is five years. (§ 186.22, subd. (b)(1)(B).) If
the offense is a violent felony, as defined in section 667.5, subdivision (c), the
additional term is 10 years. (§ 186.22, subd. (b)(1)(C).)
A gang member who is convicted of a violation of section 186.22(a), on the
other hand, would presumably be sentenced for the underlying felony as well as
the separate conviction under section 186.22(a). The maximum punishment for a
violation of section 186.22(a) is three years. Applying section 1170.1, subdivision
(a), the defendant would receive, at most, an additional eight-month sentence for
the gang offense. We need not consider whether imposition of such a term would
be barred by section 654. (See Mesa, supra, 54 Cal.4th at pp. 195-200.)
17
In sum, the Attorney General argues for an expansive interpretation of
section 186.22(a) that is not supported by the statutory language. Although the
People might prefer a different statute, section 186.22(a) reflects the Legislature‟s
carefully structured endeavor to punish active participants for commission of
criminal acts done collectively with gang members. Defendant here acted alone in
committing the attempted robbery. Thus, he did not also violate section 186.22(a).
DISPOSITION
We affirm the judgment of the Court of Appeal.
CORRIGAN, J.
WE CONCUR:
WERDEGAR, J.
LIU, J.
18
CONCURRING OPINION BY BAXTER, J.
I concur fully in Justice Corrigan‟s determination that defendant‟s
conviction under Penal Code section 186.22, subdivision (a) (section 186.22(a))
must be reversed. As she explains, an active gang participant only violates section
186.22(a) if he commits the requisite felony collectively with one or more
“members of that gang,” rather than while acting alone, as defendant did here.
However, unlike Justice Corrigan, I base my conclusion solely on the plain
meaning of the express statutory language. Indeed, I find Justice Corrigan‟s
analysis persuasive in this regard. Because there is no need to consider the
constitutional implications of a contrary construction, as Justice Corrigan does, I
write separately to summarize my views.
Two of the three elements of the gang offense in section 186.22(a) are not
in issue here (1) active participation in a criminal street gang, and (2) knowledge
that gang members engage in, or have engaged in, a pattern of criminal gang
activity.
Critical here is the third element that the knowing and active gang
participant “willfully promote[ ], further[ ], or assist[ ] in any felonious criminal
conduct by members of that gang.” (§ 186.22(a), italics added.) By using a plural
construction, the ordinary meaning of which is clear, the gang offense requires
felonious criminal conduct committed by at least two “[gang] members,”
including any defendant who is a member of “that gang.” (Ibid.) As Justice
1
Corrigan notes, if the Legislature had intended simply to make it a separate
offense for an active, knowing gang participant to engage in crime, it could have
omitted the relevant language, and said that any such person “who willfully
[commits,] promotes, furthers, or assists in any felonious criminal conduct . . .
shall be punished” as prescribed by statute. In that case, no purpose would be
served by the tagline “members of that gang.” I join Justice Corrigan in avoiding
such surplusage.
In a related vein, I also agree with Justice Corrigan that, as a matter of
statutory construction, lone actors are punishable under section 186.22 insofar as
their criminal sentences can be enhanced under subdivision (b)(1) of the statute
(section 186.22(b)(1)). This sentencing provision applies to “any person who is
convicted of a felony committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members.” (Ibid.)
I recognize, of course, that a seemingly similar reference to gang
“members” appears in both section 186.22(a) and section 186.22(b)(1). However,
small but significant differences in grammar and context make clear that the
enhancement provision lacks the same multiple-actor condition as the gang
offense.
First, section 186.22(b)(1), unlike section 186.22(a), applies where the
defendant, even if acting alone, “specific[ally] inten[ds]” by his felonious action to
promote, further, or assist in any criminal conduct by gang members. Section
186.22(b)(1)‟s reference to promoting, furthering, or assisting gang members thus
merely describes a culpable mental state. By contrast, the gravamen of section
186.22(a) is that the defendant‟s own criminal conduct must itself directly
promote, further, or assist felonious criminal conduct by members of the gang.
Thus, section 186.22(a) implies joint criminal action with other gang members —
2
an implication that does not necessarily arise in section 186.22(b)(1). This
difference suggests we need not construe gang “members” in each provision the
same way.
The relevant two subdivisions also treat criminal conduct by gang
“members” differently. As noted, section 186.22(a) plainly requires felonious
criminal conduct committed in tandem by at least two gang members, one of
whom may be the defendant. In contrast, nothing in section 186.22(b)(1) states or
implies that the criminal conduct by gang members which the defendant intends to
promote, further, or assist is the same criminal conduct underlying the felony
conviction subject to enhancement. For this reason too, the direct and specific link
between criminal conduct committed by the defendant and that committed by
other gang members set forth in the gang offense (section 186.22(a)) is not present
in the gang enhancement (section 186.22(b)(1)).
Accordingly, I agree with Justice Corrigan that the gang offense in section
186.22(a), unlike the gang enhancement in section 186.22(b)(1), does not extend
to defendants who commit the requisite criminal conduct on their own. No
reference to other principles, authorities, or theories, including due process, is
necessary to reach this conclusion. I therefore take no position on such matters.
BAXTER, J.
3
DISSENTING OPINION BY KENNARD, J.
Is the crime of criminal street gang participation (Pen. Code, § 186.22,
subd. (a))1 committed when a lone gang member‟s felonious conduct benefits the
gang as a whole? In my view, it is. The lead opinion reaches the opposite
conclusion.
I
On the evening of May 10, 2007, in the northern California town of
Marysville, defendant, who was an active Norteño gang member, approached
Stanley Olsen. Using a racial epithet, defendant demanded Olsen‟s money and
threatened to kill him. Defendant then punched Olsen in the jaw and continued to
beat him after Olsen fell to the ground. Olsen eventually escaped. When police
officers arrested defendant that same night at a nearby apartment, they saw that the
words “northern” and “warrior” were tattooed on his arms, and that he was
wearing shoes with red laces.
At defendant‟s trial, two criminal street gang experts testified for the
prosecution: Sergeant Allan Garza of the Yuba County Sheriff‟s Department
testified that robbery was a primary activity of the Norteño gang in Yuba County.
Sergeant Christian Sachs of the Marysville Police Department confirmed that
robbery was a primary activity of the gang, and he discussed the gang‟s presence
1 All further statutory references are to the Penal Code.
1
in Marysville. These experts identified defendant‟s tattoos and red shoelaces as
symbols of Norteño gang membership, and they expressed the view that
defendant‟s attempt to rob Olsen was for the benefit of the gang. They explained
that the crime benefitted the gang by intimidating the community, making it easier
for gang members to commit crimes in the community, and making it less likely
that witnesses of gang crimes would testify against gang members.
A jury convicted defendant of attempted robbery (§§ 211, 664) and, as
relevant here, criminal street gang participation (§ 186.22, subd. (a)). In a two-to-
one decision, the Court of Appeal reversed the gang participation conviction,
concluding that the statute could not be violated by an individual acting alone. We
granted the Attorney General‟s petition for review.
II
Section 186.22‟s subdivision (a), which defines the offense of gang
participation, is a part of the California Street Terrorism Enforcement and
Prevention Act (§ 186.20 et seq.) (STEP Act). In enacting the STEP Act, the
Legislature made this finding: “[T]he State of California is in a state of crisis
which has been caused by violent street gangs whose members threaten, terrorize,
and commit a multitude of crimes against the peaceful citizens of their
neighborhoods. These activities, both individually and collectively, present a clear
and present danger to public order and safety and are not constitutionally
protected.” (§ 186.21.) The Legislature then expressed its intent “to seek the
eradication of criminal activity by street gangs by focusing on patterns of criminal
gang activity . . . .” (Ibid.) That purpose is furthered by applying the criminal
street gang participation statute here: Defendant attempted a crime that fit the
Norteño street gang‟s pattern of criminal activity (robbery while displaying
symbols of gang membership), thereby advancing the gang‟s goal of terrorizing
the residents of Marysville.
2
Section 186.22‟s subdivision (a) imposes punishment on “[a]ny person who
[1] actively participates in any criminal street gang [2] with knowledge that its
members engage in or have engaged in a pattern of criminal gang activity, and
[3] who willfully promotes, furthers, or assists in any felonious criminal conduct
by members of that gang.” (§ 186.22, subd. (a).) The statute‟s third requirement
is at issue here. As explained below, it can be satisfied in at least three ways.
First, an offender “willfully promotes, furthers, or assists” the “felonious
criminal conduct” of gang “members” if the offender, aided and abetted by other
gang members, commits any felony, whether or not the felony is committed for
the gang‟s benefit. (See People v. Albillar (2010) 51 Cal.4th 47, 55-56.)
Second, an offender “willfully promotes, furthers, or assists” the “felonious
criminal conduct” of gang “members” if the offender aids and abets another gang
member in committing any felony. (People v. Castenada (2000) 23 Cal.4th 743,
749-752 (Castenada).)
Third, the offender “willfully promotes, furthers, or assists” the “felonious
criminal conduct” of gang “members” if the offender, acting alone, willfully
commits a felony that, by its nature and circumstances, advances the gang’s
overall felonious purpose. (See People v. Sanchez (2009) 179 Cal.App.4th 1297,
1308 (Sanchez); People v. Salcido (2007) 149 Cal.App.4th 356, 368 (Salcido);
People v. Ngoun (2001) 88 Cal.App.4th 432, 436 (Ngoun).) The cited Court of
Appeal decisions all conclude that a lone gang member who perpetrates a gang-
related felony violates the gang participation statute if the felony in question
promotes the gang‟s general purpose. As the court in Ngoun said in upholding a
gang participation conviction, “[t]he evidence supports a reasonable inference that
the [felonies appellant committed] were intended by appellant to promote, further
and assist the gang in its primary activities — the commission of criminal acts and
the maintenance of gang respect.” (Ngoun, at p. 437, italics added.)
3
If the Legislature had intended to restrict the crime of criminal street gang
participation to the first two groups of offenders discussed above — those who act
together with other gang members — it could simply have said, “promotes,
furthers, or assists in any felony by members of that gang,” instead of the statute‟s
current language of “promotes, furthers, or assists in any felonious criminal
conduct by members of that gang.” (§ 186.22, subd. (a), italics added.) Unlike the
word “felony,” the broader phrase “felonious criminal conduct” need not refer to a
specific felony; rather, it might refer more generally to the gang‟s overall felonious
enterprise, which can be promoted or furthered by a lone gang member‟s felony.
That point is overlooked by the lead opinion.
In concluding that the gang participation statute cannot be violated by a
gang member acting alone, the lead opinion focuses on the word “members” in
that statute. The pertinent statutory phrase requires that the offender “willfully
promote[], further[], or assist[] in any felonious criminal conduct by members of
th[e] gang.” (§ 186.22, subd. (a), italics added.) According to the lead opinion, a
gang member (singular) cannot “promote[], further[], or assist[]” the felonious
conduct of gang members (plural) unless the gang member joins with at least one
other gang member in committing a felony. (Lead opn., ante, pp. 7-8.)
Relying on section 7 — which states that the use of the plural in the Penal
Code includes the singular — the Attorney General argues that the plural word
“members” includes the singular word “member,” and that a gang member can
therefore violate the gang participation statute by “promot[ing] [or] further[ing]” the
member‟s own (solitary) felonious conduct. In rejecting that argument, the lead
opinion points out that the felonious conduct need not be conduct that benefits the
gang. As the lead opinion notes, one can violate the gang participation statute by
aiding and abetting another gang member in, for instance, an act of spousal abuse, or
by committing some other felony unrelated to the gang‟s primary activities. (See
4
People v. Albillar, supra, 51 Cal.4th at pp. 55-56.) The lead opinion reasons that if
promoting or furthering one‟s own felonious conduct satisfies the requirement of the
gang participation statute, then one can be found guilty of gang participation merely
for being a gang member and committing some felony, regardless of whether the
felony benefitted the gang in any way. That, in the lead opinion‟s view, would
potentially violate the federal Constitution because it would result in an additional
serious felony conviction for the mere act of being a gang member while
committing a non-gang-related felony. (See Scales v. United States (1961) 367 U.S.
203, 228 (Scales).) The lead opinion asserts that the Legislature imposed the
requirement of two or more gang members acting together because it sought to
avoid the potential federal constitutional problem associated with applying the
statute at issue here to someone acting alone. (Lead opn., ante, pp. 9-12.)
Although the lead opinion is correct that section 186.22‟s subdivision (a)
does not require that the felony committed by the defendant be for the gang‟s
benefit (lead opn., ante, p. 11), surely that statute is violated by a felony that is for
the gang‟s benefit. And, as I noted earlier (see pp. 3-4, ante), a person can violate
the gang participation statute while acting alone if the person willfully commits a
felony that, by its nature and circumstances, advances the gang‟s overall felonious
purpose. (See Sanchez, supra, 179 Cal.App.4th at p. 1308; Salcido, supra, 149
Cal.App.4th at p. 368; Ngoun, supra, 88 Cal.App.4th at p. 436.) If, for example, a
gang‟s primary purpose is to terrorize and control a specific neighborhood by
committing robberies in that neighborhood, then a lone gang member who,
displaying symbols of gang membership, commits a robbery in the relevant
neighborhood meets, in my view, the requirement of section 186.22‟s subdivision
(a) of “promot[ing], further[ing], or assist[ing] in . . . felonious criminal conduct
by members of th[e] gang.”
5
Moreover, convicting a person of criminal street gang participation under
those circumstances would not violate the federal constitutional constraints that
the United States Supreme Court set forth in Scales, supra, 367 U.S. 203. That
case concerned the constitutionality of the Smith Act, which criminalized
membership in an organization advocating the forceful or violent overthrow of the
federal government. (Scales, supra, at p. 205.) In upholding the constitutionality
of the Smith Act, the high court interpreted that act “to reach only [1] „active‟
members having also a [2] guilty knowledge and [3] intent . . . .” (Scales, at
p. 228, italics added.) Those three requirements, the high court said, “prevent[] a
conviction on what otherwise might be regarded as merely an expression of
sympathy with the alleged criminal enterprise, unaccompanied by any significant
action in its support or any commitment to undertake such action.” (Ibid.)
In crafting California‟s criminal street gang participation offense (§ 186.22,
subd. (a)), the Legislature satisfied the high court‟s test in Scales, supra, 367 U.S.
203, by requiring that the offender (1) “actively participate[]” in the gang, (2) have
“knowledge” of the criminal activity of the gang‟s members, and (3) “willfully
promote[], further[], or assist[] in any felonious criminal conduct by members of
that gang.” (§ 186.22, subd. (a).) When a lone gang member willfully commits a
felony that, by its nature and circumstances, advances the gang‟s overall felonious
purpose, the third requirement is satisfied. Moreover, construing section 186.22‟s
subdivision (a) to apply in that circumstance would not violate the federal
Constitution because it would not impose criminal liability for the mere act of
being a gang member; rather, it would impose criminal liability for being a gang
member and actively advancing the gang’s overall felonious purpose. Nothing in
the high court‟s opinion in Scales precludes such a result. Therefore, the lead
opinion errs when it suggests that a requirement of more than one gang member
acting together is constitutionally necessary to ensure a “nexus between
6
defendant‟s conduct and gang activity.” (Lead opn., p. 12.) Rather, the nexus can,
as here (see p. 6, ante), be established by the nature and circumstances of the
defendant‟s crime.
In support of its construction of the gang participation statute, the lead
opinion quotes this court‟s statement in Castenada, supra, 23 Cal.4th at page 749,
that one who violates the statute “ „has also aided and abetted a separate felony
offense committed by gang members . . . .‟ ” (Lead opn., ante, p. 10.) This
statement should be read in context, however.
At issue in Castenada, supra, 23 Cal.4th 743, was the requirement that one
who violates section 186.22‟s subdivision (a) must have “actively participate[d]”
in the gang. The defendant there contended that holding a leadership position in
the gang was necessary to qualify a person as one who “actively participate[d]” in
the gang. Otherwise, the defendant in Castenada asserted, the statute would be
unconstitutional under the high court‟s holding in Scales, supra, 367 U.S. 203.
(See Castenada, at pp. 747-748.) In rejecting that argument, Castenada relied on
the statutory requirement that the offender “willfully promote[], further[], or
assist[] in any felonious criminal conduct by members of that gang.” (§ 186.22,
subd. (a).) That requirement, Castenada reasoned, ensured a level of active
participation that was “more than nominal or passive” (Castenada, at p. 752), and
therefore an additional requirement of leadership in the gang was constitutionally
unnecessary. (Id. at pp. 749-752.) It was in that context that Castenada said that
“a person who violates section 186.22(a) has also aided and abetted a separate
felony offense committed by gang members . . . .” (Castenada, at p. 749; see also
id. at pp. 750-752.)
In emphasizing that under section 186.22‟s subdivision (a), an offender‟s
participation in a criminal street gang must, by definition, be “more than nominal
or passive” (Castenada, supra, 23 Cal.4th at p. 752), Castenada only needed to
7
mention the minimum way an offender could participate in a street gang and still
violate the statute — that is, by aiding and abetting gang members. No need
existed in Castenada to consider more direct forms of active gang participation,
such as that at issue here.
Here, the prosecution‟s evidence established that robbery was a primary
activity of the Norteño criminal street gang; that the gang was active in
Marysville, where the defendant committed the attempted robbery; and that
defendant displayed symbols of gang membership during his commission of that
crime. Under those circumstances, I conclude, as did the dissenting justice in the
Court of Appeal, that defendant came within the language of the criminal street
gang participation statute by “willfully promot[ing] [or] further[ing] . . . felonious
criminal conduct by members of th[e] gang.” (§ 186.22, subd. (a).) Accordingly,
I would reverse the judgment of the Court of Appeal and remand the matter to that
court with directions to uphold defendant‟s conviction under section 186.22‟s
subdivision (a).
KENNARD, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
CHIN, J.
8
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Rodriguez
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 188 Cal.App.4th 722Rehearing Granted
__________________________________________________________________________________
Opinion No. S187680
Date Filed: December 27, 2012
__________________________________________________________________________________
Court: Superior
County: Yuba
Judge: James L. Curry
__________________________________________________________________________________
Counsel:
Diane Nichols, under appointment by the Supreme Court, and Grace Lidia Suarez, under appointment by
the Court of Appeal, for Defendant and Appellant.
Frank Ospino, Public Defender (Orange), Jean Wilkinson, Chief Public Defender, Mark S. Brown,
Assistant Public Defender, Martin F. Schwarz and Adam Vining, Deputy Public Defenders, for Orange
County Public Defender‟s Office as Amicus Curiae on behalf of Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Brook A.
Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Diane Nichols
P.O. Box 2194
Grass Valley, CA 95945
(530) 477-8448
Brook A. Bennigson
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 327-5687