People v. Rodriguez

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 722

Rehearing 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