The opinion
Filed 3/5/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Petitioner,
v.
THE SUPERIOR COURT OF A168018
THE CITY AND COUNTY OF
SAN FRANCISCO; (San Francisco City &
County Super. Ct.
Respondent;
No. 23000776)
LEE FARLEY,
Real Party in Interest.
In the action below, the People allege that, on January 9,
2015, defendant Lee Farley shot and killed four young men
sitting in a car in San Francisco’s Hayes Valley neighborhood.
The prosecution’s theory of the case is that it was a drive-by
shooting committed for the benefit of “Page Street,” which the
People allege is a “criminal street gang” under Penal Code1
section 186.22, subdivision (f) (section 186.22(f)). The superior
court ruled that the People had not satisfied their burden at the
preliminary hearing to present evidence that Page Street is
sufficiently “organized” to qualify as criminal street gang.
1 Further statutory references are to the Penal Code unless
otherwise specified.
1
(§ 186.22(f).) Because we conclude the People met their burden,
we grant a writ of mandate directing the superior court to vacate
its order setting aside the gang-related count, allegations, and
enhancements against Farley.
BACKGROUND
I. Procedural history
A complaint filed on January 19, 2023, in the Superior
Court for the City and County of San Francisco charged Farley
with four counts of murder. (§ 187, subd. (a).) Attached to each
count of murder were three special circumstance allegations:
discharge of a firearm from a motor vehicle (§ 190.2,
subd. (a)(21)); murder by an active participant in a criminal
street gang to further the activities of the gang (§ 190.2,
subd. (a)(22)); and multiple murders (§ 190.2, subd. (a)(3)). The
complaint further alleged various firearm use enhancements to
each count of murder, including that the use of a firearm was for
the benefit of a criminal street gang. (§§ 12022.5, subd. (a);
12022.53, subds. (b)–(e).) Counts five and six charged Farley
with firearm-related offenses (§§ 246; 29800, subd. (a)(1)), and
the first six counts all alleged that Farley had committed the
offenses for the benefit of a criminal street gang. (§ 186.22,
subd. (b).) Count seven charged Farley with the substantive
offense of participation in a criminal street gang (§ 186.22,
subd. (a)), along with firearm-related enhancements (§§ 12022.5,
subd. (a); 12022, subd. (a)(1)). Finally, the complaint contained
allegations regarding various aggravating circumstances
pursuant to California Rules of Court, rule 4.421 and Farley’s
2
prior convictions within the meaning of sections 667,
subdivisions (a)(1), (d), and (e), and 1170.12, subdivisions (b)
and (c).
At the conclusion of the preliminary hearing, the
magistrate held Farley to answer on all the charges, allegations,
and special circumstances in the complaint. The information
charged Farley consistently with the complaint.
Farley moved to set aside the information under section
995 on various grounds, and he demurred to the aggravating
factors alleged in the information. As relevant here, Farley
argued that the prosecution had failed to establish that Page
Street, the alleged criminal street gang that the charged offenses
were purportedly intended to benefit, was “organized” within the
meaning of section 186.22(f)’s definition of a “criminal street
gang” as an “ongoing, organized association or group.” The
People opposed the motion to set aside and the demurrer.
The superior court denied the section 995 motion in part
and granted it in part. The court granted the motion as to count
seven, the substantive offense of participation in a criminal street
gang (§ 186.22, subd. (a)), and as to all the gang-related special
circumstances, enhancements, and allegations associated with
counts one through six. The court reasoned that the People had
failed to prove that Page Street is “organized,” as required by
section 186.22(f). Accordingly, the court dismissed the
substantive gang offense in count seven as well as all gang-
related special circumstances, enhancements, and allegations.
3
The court denied the motion to dismiss in all other respects, and
it overruled the demurrer to the special allegations.
With trial set to begin on the remaining counts three days
after the court’s ruling, the People immediately filed a notice of
appeal and asked the superior court to stay the trial while the
People pursued their appeal and a writ petition. The superior
court continued the trial date for three days. The People filed a
writ petition in this court seeking a writ of mandate directing the
superior court to vacate its order partially granting Farley’s
section 995 motion or, in the alternative, a writ of supersedeas
staying Farley’s jury trial until this court could decide the
People’s appeal of the superior court’s order. The People also
asked this court to stay Farley’s jury trial until issuance of a
decision on the appeal or writ petition. We temporarily stayed
the trial and requested briefing. After receiving briefing, we
issued an order to show cause and ordered the stay of trial to
remain in place pending further order of the court. We also
stayed further briefing in the People’s appeal of the same order
with the expectation that the appeal would be dismissed as moot
upon the issuance of the remittitur in this case.
II. Relevant facts from the preliminary hearing
The sole issue before this court is whether, at the
preliminary hearing, the People presented evidence that Page
Street is “organized” within the meaning of section 186.22(f) in a
quantum sufficient to withstand a section 995 motion to dismiss.
We therefore limit our recitation of the factual background of this
case to the evidence presented at the preliminary hearing bearing
4
upon that question. Almost all of the relevant testimony came
from San Francisco Police Sergeant Damon Jackson, whom the
magistrate accepted as an expert with respect to investigations
into criminal street gangs, investigation of crimes involving
criminal street gangs in the Western Addition of San Francisco,
and criminal street gang culture in San Francisco.
Page Street, also referred to as Page Street Mob, was one of
four to five criminal street gangs active in the Western Addition
around January 2015. Other gangs then active included Mac
Block, Eddy Rock, and Chopper City. Page Street’s rivals or
enemies were Mac Block and Potrero Hill. Three of the four
victims of the charged shooting in the underlying case were
known to law enforcement as members or associates of Mac
Block.
Page Street also goes by other names, such as Zone 4 and
Zone 6. Page Street’s symbols are the numbers 4, 400, and 6,
which appear in tattoos, social media handles and hashtags, and
in hand signs. For example, Sergeant Jackson testified that he
had seen an individual with a tattoo of “400” on the hand, and he
had seen tattoos of “4’s up, P’s down,” with the “P down” referring
to the number 6. These names and symbols refer to the 400 block
of Rose Street and the 600 block of Linden Street. Those areas
are Page Street’s “turf” or “safety zone,” which means the area
over which a gang claims control and where they feel safest.
San Francisco’s gangs are generally street-based gangs, but
that does not mean that the members live on the street
associated with the gang. Of the Western Addition gangs, one
5
(CDP) is not directly associated with public housing, but other
criminal street gangs in San Francisco largely have their safety
zones located near public housing. Most people associated with
criminal street gangs leave or want to leave the areas of public
housing associated with criminal street gangs because the
environment is very dangerous for them. But they often come
back to the area even after moving away and conduct themselves
in the same way as when they lived there.
A successful federal RICO prosecution directed at gang
members in the early 2000s took out a generation of Page Street
gang members, leaving a membership vacuum that younger
members began to fill. In January 2015, there were
approximately 10 active members of Page Street.
Sergeant Jackson described the organization of Page Street
as “generally informal but organized.” It is organized in the
sense of members having particular roles to successfully complete
the crimes the gang commits. Page Street did not have leaders in
the sense of everyone responding to orders from one individual,
but some members had a larger voice and more influence. A
member may have more influence because they have money,
knowledge on how to make money, or knowledge of how to
acquire things necessary for the gang to commit crimes, such as
firearms. Not everyone who lives in a gang’s turf or safety area is
a member of that gang, nor does associating with members of the
gang necessarily make a person a gang associate. It requires a
certain level of activity with the gang to make a person an
associate, and another level of activity to bring a person to the
6
member level. Page Street’s primary activities from 2013 to
January 2015 were theft, burglary, assault, possession of
firearms, and robbery.
Younger members who are trying to elevate their status in
a gang like Page Street start off with property crimes like car
burglaries and then increasingly commit more serious crimes like
residential burglaries, home invasions, and assaults or shootings.
Gang members have specifically said they needed to “catch a
body” to elevate their status. Trust is an important aspect of
committing crimes with other gang members, since trust allows
gang members to commit crimes together, which facilitates the
success of the crime. Older gang members will teach younger
gang members how to conduct themselves and how to make
money. Gang members use phrases like “put me on” or “I put
someone on” to refer to the type of relationship by which an older
member teaches a younger member how to commit crimes for
profit.
Testifying about one photograph from a social media
account attributed to Farley, Sergeant Jackson identified and
described Page Street members or affiliates displaying hand
signs or tattoos associated with Page Street.2 In reviewing an
2 Farley objects to the gang expert’s reliance on social
media posts that he claims lacked foundation and proper
authentication, among other things. We discern no abuse of
discretion in the court allowing the social media posts to be
admitted into evidence at the preliminary hearing. (People v.
Waidla (2000) 22 Cal.4th 690, 717 [evidentiary rulings reviewed
for abuse of discretion]; People v. Valdez (2011) 201 Cal.App.4th
7
account associated with Lavontae Farley — Farley’s brother and
a member of Page Street — Sergeant Jackson identified
defendant Farley displaying a hand sign signifying the number 6.
Within hours after the homicides at issue in this case, there
was a video on social media of a Page Street member, Raydell H.,
displaying a yellow bandana.3 Mac Block gang members are
associated with the color yellow, so it would be a sign of
disrespect for members of Page Street to display the yellow
bandana after the murder of victims associated with Mac Block.
Finally, Sergeant Jackson described a YouTube music video
titled “Zone Life,” featuring a number of Page Street members
displaying firearms. The main lyric in that video is, “You took
one. We took four. Watch and we’re gonna get some more.”
Sergeant Jackson believed “one” referred to the victim of an
earlier murder attributed to Mac Block and “four” referred to the
homicide victims in the underlying case. Making the video
publicly accessible on YouTube put Page Street’s rivalry with
Mac Block on display and exacerbated it. In another music video
titled “Gang,” several Page Street members described themselves
as “Page Street young’ns,” displayed firearms, and kept saying,
“Gang.” Sergeant Jackson testified that the Page Street
1429, 1435 [social media post’s authenticity may be established
by its contents or other circumstantial evidence].)
3 The magistrate ordered testifying witnesses to use first
name and last initial when referring to individuals who were
juveniles at the time of the incident regarding which the witness
was testifying.
8
members repeatedly saying the word “gang” was relevant
because they were saying they were a gang.
DISCUSSION
I. Propriety of writ review
An order granting a section 995 motion, in whole or in part,
is appealable. (§ 1238, subd. (a)(1).) Indeed, the People filed a
timely notice of appeal in case number A168183. However, they
also seek relief in this separate writ proceeding, either in the
form of a writ of mandate directing the superior court to vacate
the challenged order and deny the section 995 motion in its
entirety or, alternatively, a writ of supersedeas to stay the trial
pending the resolution of the appeal.
In order to justify extraordinary writ relief, a petitioner
must establish that there is no adequate remedy at law and that
the petitioner will suffer irreparable injury if the writ is not
granted. (Los Angeles Gay & Lesbian Center v. Superior Court
(2011) 194 Cal.App.4th 288, 299–300.) Here, the threatened
injury is clear. Absent immediate relief, the People will be forced
to proceed to trial on the charges that remain after the partial
grant of the section 995 motion. (§ 1242 [appeal by the People
does not stay judgment in favor of defendant]; People v. Bogart
(1970) 7 Cal.App.3d 257, 263–264 [People’s appeal of dismissal of
some counts did not affect trial court’s jurisdiction over
remaining unaffected counts].) If the People are entitled to
reinstatement of the dismissed charges and enhancements, and
assuming Farley is convicted of some or all of the underlying
charges in the first trial, the People would be forced to conduct a
9
second trial limited to the gang-related charges and
enhancements. (People v. Anderson (2009) 47 Cal.4th 92, 119–
124 [separate retrial limited to penalty allegations is
authorized].) Any such trial would require much the same
evidence offered in the first trial to be presented to a second trier
of fact. (See People v. Superior Court (Caudle) (1990)
221 Cal.App.3d 1190, 1193, fn. 2 [writ review appropriate to
avoid multiple trials involving the same facts].)
Farley contends there is no irreparable harm because the
gang charges and enhancements would be bifurcated from the
remaining charges even if they were reinstated. (See § 1109.)
This argument is unpersuasive. As an initial matter, the
bifurcation of gang-related charges required by section 1109 upon
a defendant’s request does not apply to the gang-related special
circumstances charged under section 190.2, subdivision (a)(22).
(People v. Montano (2022) 80 Cal.App.5th 82, 111–114.) That
aside, even if the gang charges and enhancements were
bifurcated from other substantive offenses, the entire case would
still be decided by the same trier of fact. That would not be the
case if the People were required to try the gang charges and
enhancements in a separate trial. Further, wholly apart from the
concern about multiple trials, it may be necessary to resolve the
question of whether Page Street qualifies as a criminal street
gang under section 186.22(f) in order to assess, at the trial of the
substantive offenses, the admissibility of evidence of motive,
intent, or other relevant facts under Evidence Code section 1101,
10
subdivision (b). The People have thus met their burden to show
irreparable harm absent writ relief.
The question of whether the People lack an adequate
remedy at law is a closer one. Ordinarily, a remedy by immediate
appeal is presumed to be adequate. (Powers v. City of Richmond
(1995) 10 Cal.4th 85, 113.) However, notwithstanding the right
to immediately appeal an order partially granting a section 995
motion, there have been instances in which appellate courts have
concluded writ relief is appropriate to reverse an order that
erroneously dismisses a portion of an information or indictment.
(See People v. Superior Court (Bolden) (1989) 209 Cal.App.3d
1109, 1112; People v. Superior Court (Caudle), supra,
221 Cal.App.3d at pp. 1192–1193 & fn. 2; People v. Superior
Court (Day) (1985) 174 Cal.App.3d 1008, 1011, fn. 1; People v.
Superior Court (Gibson) (1980) 101 Cal.App.3d 551, 555.) The
rationale for these decisions, whether explicit or implicit, was
that review by writ under the circumstances obviated the need
for multiple trials involving the same facts and avoided unduly
delaying the matter. (People v. Superior Court (Bolden), at
p. 1112 [writ of mandate avoids delay and unwarranted
complications]; People v. Superior Court (Caudle), at pp. 1192–
1193 & fn. 2 [writ of mandate avoids need for multiple trials];
People v. Superior Court (Day), at p. 1101, fn. 1; People v.
Superior Court (Gibson), at p. 555 [peremptory writ of mandate
in first instance avoids delay].) Both considerations apply here as
well. In most cases, an appellate court could achieve a prompt
resolution in situations like this one without the need for writ
11
relief by expediting the appeal and staying the trial. Here,
however, by the time briefing commenced in the related appeal,
briefing in this writ proceeding was already complete. No
purpose would be served by requiring the parties to brief issues
in the appeal that have already been thoroughly addressed in
this writ proceeding. It would accomplish nothing but further
delay and requiring a second trial on the same facts.
Accordingly, under the unique circumstances of this case, it is
appropriate to resolve this matter by writ, which functionally
treats the writ proceeding as if it were an expedited appeal.4
II. Legal principles and standard of review
A defendant may seek to set aside an information under
section 995 when a magistrate commits the defendant to stand
trial “without reasonable or probable cause.” (§ 995,
subd. (a)(2)(B).) “ ‘ “ ‘Reasonable or probable cause’ means such a
state of facts as would lead a [person] of ordinary caution or
prudence to believe, and conscientiously entertain a strong
suspicion of the guilt of the accused.” ’ ” (People v. Mower (2002)
28 Cal.4th 457, 473.) “ ‘ “[T]he showing required at a preliminary
hearing is exceedingly low.” ’ ” (Zemek v. Superior Court (2020)
44 Cal.App.5th 535, 544.) Accordingly, “ ‘[w]e will not set aside
an information “if there is some rational ground for assuming the
possibility that an offense has been committed and the accused is
4 The People could have accomplished the same thing by
moving for calendar preference and an accelerated briefing
schedule in the appeal. As we indicated in our prior order in this
case, upon issuance of the remittitur in this case we will dismiss
as moot the People’s appeal of the trial court’s section 995 order.
12
guilty of it” ’ ” (id. at p. 545), meaning that “an indictment or
information should be set aside only when there is a total absence
of evidence to support a necessary element of the offense
charged.” (People v. Superior Court (Jurado) (1992)
4 Cal.App.4th 1217, 1226.)
In reviewing an order granting a section 995 motion, we
disregard the superior court’s ruling and examine only the
magistrate’s decision holding the defendant to answer. (People v.
Laiwa (1983) 34 Cal.3d 711, 718.) “[W]e must uphold the
magistrate’s express or implied findings if they are supported by
substantial evidence.” (People v. McDonald (2006)
137 Cal.App.4th 521, 529.) “ ‘Every legitimate inference that
may be drawn from the evidence must be drawn in favor of the
information.’ ” (Bom v. Superior Court (2020) 44 Cal.App.5th 1,
11.) Where the facts are undisputed, the determination of
probable cause “constitute[s] a legal conclusion which is subject
to independent review on appeal.” (People v. Watson (1981)
30 Cal.3d 290, 300.)
III. Interpreting “organized” in section 186.22(f)
The California Street Terrorism Enforcement and
Prevention Act, also known as the STEP Act, was enacted in 1988
to target crimes committed by violent street gangs. (§§ 186.20 et
seq.; see People v. Renteria (2022) 13 Cal.5th 951, 962.) Effective
January 1, 2022, Assembly Bill No. 333 (2021–2022 Reg. Sess.)
(Assembly Bill 333), also known as the STEP Forward Act of
2021, amended the statutory scheme in various respects,
including by modifying the definition of “criminal street gang” in
13
section 186.22(f). (Stats. 2021, ch. 699, § 3.) As amended by
Assembly Bill 333, section 186.22(f) defines “criminal street gang”
as “an ongoing, organized association or group of three or more
persons, whether formal or informal, having as one of its primary
activities the commission of one or more of the criminal acts
enumerated in subdivision (e), having a common name or
common identifying sign or symbol, and whose members
collectively engage in, or have engaged in, a pattern of criminal
gang activity.” The superior court dismissed the gang-related
count, special circumstances, enhancements, and allegations
because it agreed with Farley that Page Street is not “organized”
within this definition. Our tasks are therefore (1) to ascertain
what the Legislature intended by requiring an association or
group to be “organized” to qualify as a criminal street gang, and
then (2) to determine whether the prosecution’s proof as to that
aspect of section 186.22(f) meets the “ ‘ “exceedingly low” ’ ” bar at
a preliminary hearing. (Zemek v. Superior Court, supra,
44 Cal.App.4th at p. 544.)
“The principles of statutory construction are well
established. ‘The fundamental purpose of statutory construction
is to ascertain the intent of the lawmakers so as to effectuate the
purpose of the law.’ [Citation.] In approaching this task, we
‘must first look at the plain and commonsense meaning of the
statute because it is generally the most reliable indicator of
legislative intent and purpose.’ [Citation.] ‘If there is no
ambiguity or uncertainty in the language, the Legislature is
presumed to have meant what it said, and we need not resort to
14
legislative history to determine the statute’s true meaning.’ ”
(People v. Skiles (2011) 51 Cal.4th 1178, 1185.) If, however, “the
statutory language may reasonably be given more than one
interpretation, ‘ “ ‘courts may consider various extrinsic aids,
including the purpose of the statute, the evils to be remedied, the
legislative history, public policy, and the statutory scheme
encompassing the statute.’ ” ’ ” (People v. King (2006) 38 Cal.4th
617, 622.)
We begin with the statute’s plain language, specifically
section 186.22(f)’s definition of a “criminal street gang” as “an
ongoing, organized association or group of three or more persons,
whether formal or informal . . . .” (Italics added.) The term
“organized” is not defined in the statute. One dictionary defines
“organized,” as relevant here, as “having a formal organization to
coordinate or carry out joint activities.” (Webster’s 3d New
Internat. Dict. (2002) p. 1590.) Other dictionaries’ definitions of
“organized” are similar. (E.g., American Heritage Dict. (4th ed.
2000) p. 1239 [“[f]unctioning within a formal structure, as in the
coordination and direction of activities”]; Random House
Webster’s College Dict. (2nd rev. 2001) p. 934 [“having an
organization or structure for directing widespread activities”].)
These definitions suggest that to qualify as a criminal street
gang, a group or association must have some type of structure to
coordinate or carry out the gang’s activities in common.
However, the statute qualifies its use of “organized” by noting
that a criminal street gang may be formal or informal.
(§ 186.22(f).) This indicates that, notwithstanding those
15
dictionaries that define “organized” as having a formal
organization or structure, an association or group’s structure or
coordination need not be formal.
The terms of the statute offer little guidance concerning
what it means for an association or group to be organized
informally. The statute’s history and its interpretation by our
Supreme Court offer some insight. Before Assembly Bill 333,
section 186.22, former subdivision (f) defined a “criminal street
gang” in relevant part as “any ongoing organization, association,
or group of three or more persons, whether formal or
informal . . . .” (§ 186.22, former subd. (f); Stats. 2017, ch. 561,
§ 178.) Assembly Bill 333 replaced “ongoing organization,
association, or group” with “ongoing, organized association or
group.” (Compare § 186.22, subd. (f), as amended by Stats. 2017,
ch. 561, § 178 with § 186.22(f).) On its face, this change — from
using “organization” as an alternative to “association” or “group,”
to using “organized” to modify “association or group” — raises the
possibility that Assembly Bill 333 intended to increase the level
of organization required for a group to qualify as a criminal street
gang. Importantly, however, Assembly Bill 333 left unchanged
the qualifier that a criminal street gang may be a “formal or
informal” association or group. (Compare § 186.22, former
subd. (f), as amended by Stats. 2017, ch. 561, § 178 with
§ 186.22(f).) This suggests that whatever other effects Assembly
Bill 333 had on the law relating to criminal street gang offenses,
it did not intend to make a dramatic change to section 186.22(f).
16
The Supreme Court’s analysis of section 186.22, former
subdivision (f) (Stats. 2017, ch. 561, § 178) in People v. Prunty
(2015) 62 Cal.4th 59 (Prunty) confirms that Assembly Bill 333’s
addition of “organized” to section 186.22(f) was relatively modest
in effect. Prunty considered what must be shown to establish the
existence of a single, large criminal street gang when proof of the
overarching gang’s existence turns on the conduct and existence
of different gang subsets. (Prunty, at p. 71.) In addressing this
question, the court examined at length the definition of “criminal
street gang” in section 186.22, former subdivision (f) and
specifically considered “what it means to constitute an
‘organization, association, or group.’ ” (Prunty, at p. 71.)
Notably, in construing the meaning of the terms
“ ‘association’ ” and “ ‘organization,’ ” Prunty relied on dictionary
definitions emphasizing that such entities must be “ ‘organized.’ ”
(See Prunty, supra, 62 Cal.4th at p. 72 [citing definitions of an
“ ‘association’ ” as “ ‘[a]n organized body of people who have an
interest, activity, or purpose in common’ ” and an
“ ‘organization’ ” as “ ‘[a] group of persons organized for a
particular purpose’ ”].) The court acknowledged that the
definitions of the term “group” might be construed to “encompass
broader collections of people” with a looser relationship than an
“association” or “organization.” (Id. at p. 73.) However, it
reasoned that, under the noscitur a sociis canon of construction
(by which “a word literally ‘is known by its associates’ ”), the
meaning of “group” in section 186.22, former subdivision (f)
(Stats. 2017, ch. 561, § 178) was “generally similar to—and at
17
least no broader than” the other terms. (Prunty, at p. 73.)
Therefore, like the terms “association” and “organization,” the
term “group” as used in section 186.22, former subdivision (f)
connoted persons organized in a shared venture. (Prunty, at
p. 73.) Prunty also emphasized that the Legislature had declared
in the original STEP Act that its focus was on “ ‘the organized
nature of street gangs’ ” as well as “the accompanying ‘patterns of
criminal gang activity.’ ” (Prunty, at p. 74, citing § 186.21, italics
added.)
However, Prunty explained that the qualifying terms
“formal or informal” in the definition of “criminal street gang”
suggested it was not necessary to show “the stereotypical
organized crime syndicate’s hierarchical, tightly organized
framework.” (Prunty, supra, 62 Cal.4th at p. 73.) The court
observed that “formal groups may often reflect well-defined
membership criteria, a discernible hierarchy, predictable meeting
schedules and locations, fixed membership groups, and codified
rules and order. Informal groups, by contrast, will rarely if ever
display these characteristics. They need not exhibit an
identifiable hierarchy; their membership composition may be
fluid; the boundaries of their ‘turf’ may be porous; and their
methods of communication may be variable. But, they must still
be united by something in common beyond pure happenstance.”
(Ibid.) Thus, while Prunty required an “organization, association,
or group” under section 186.22, former subdivision (f) (Stats.
2017, ch. 561, § 178)to be organized, it did not require a formal
degree of organization.
18
Prunty proceeded to describe what types of evidence would
suffice to establish the existence of an informal organization, at
least in the context of showing that individual subsets are part of
a larger group: “[C]ollaboration among subset members, long-
term relationships among members of different subsets, use of
the same ‘turf,’ [and] behavior demonstrating a shared identity
with one another . . . .” (Prunty, supra, 62 Cal.4th at p. 73.)
Prunty cautioned that the law indicated that “a group must be
united by more than shared colors, names, and other symbols.”
(Id. at p. 74.) Prunty also stated that there must be evidence of
common activities rather than just shared viewpoints and noted
that proof of a group’s common enemy or loose common ideology
was insufficient. (Id. at p. 75.)
Farley acknowledges that, while Prunty mostly focused on
gang subsets, the same considerations apply to defining the very
existence of a gang. Consequently, Assembly Bill 333’s use of the
term “organized” arguably did nothing more than codify Prunty’s
articulation of the existing state of the law or clarify that
Prunty’s rationale applied beyond the gang subset context. But
even if Assembly Bill 333’s addition of the word “organized”
should be viewed as a substantive change requiring all groups or
associations to be “organized” to qualify as criminal street gangs,
it remains the case that a “criminal street gang” under section
186.22(f) may be formal or informal. The same types of evidence
Prunty indicated would be sufficient proof of informal
organization in the context of gang subsets — collaboration, long-
term relationships, use of the same turf, and behavior
19
demonstrating a shared identity — therefore also suffice to show
the types of associational ties that would support a finding that
an informal association or group is sufficiently “organized” to
qualify as “criminal street gang” under section 186.22(f).
Farley urges that Assembly Bill 333’s legislative findings
and declarations add important context to the word “organized,”
suggesting that the Legislature intended a much narrower
definition of a gang.5 In particular, he relies on the following
uncodified finding in Assembly Bill 333: “The social networks of
residents in neighborhoods targeted for gang suppression are
often mischaracterized as gangs despite their lack of basic
organizational requirements such as leadership, meetings,
hierarchical decisionmaking, and a clear distinction between
members and nonmembers.” (Stats. 2021, ch. 699, § 2,
5 Farley also argues more generally that the Legislature
intended Assembly Bill 333 to dramatically limit the scope of the
gang enhancement. (See People v. Rojas (2023) 15 Cal.5th 561,
565 [Assem. Bill 333 “substantially narrowed § 186.22(f)’s
definition of ‘criminal street gang’ ”].) This general observation
about the effect of the legislation as a whole, however, does not
mean that each individual modification within Assembly Bill 333
must be interpreted to significantly narrow the statute’s
application. The language at issue is just one of many changes
effected by Assembly Bill 333. (See People v. Tran (2022)
13 Cal.5th 1169, 1206 [listing four main areas of statutory
changes enacted by Assem. Bill 333].) Our analysis is limited to
the statutory change requiring that a gang be an “ongoing,
organized association or group of three or more persons.”
(§ 186.22(f), italics added.) We have no occasion to consider the
impact of other statutory changes included within Assembly Bill
333 or the effect of the legislation on the scope of the gang
enhancement as a whole.
20
subd. (d)(8), italics added.) According to Farley, a group that is
“organized” should possess all these markers of an organization.
Farley’s reliance on uncodified legislative findings is
unpersuasive.
Uncodified legislative findings may serve as an interpretive
tool when a statutory provision is otherwise unclear after
considering its text, structure, and related statutory provisions.
(Young v. Superior Court (2022) 79 Cal.App.5th 138, 156–157.)
But such findings “ ‘ “ ‘do not confer power, determine rights, or
enlarge the scope of [the] measure’ ” ’ ” (People v. Flores (2020)
44 Cal.App.5th 985, 995) and are “not intended to be a
substantive part of the code section or general law that the bill
enacts . . . .” (People v. Allen (1999) 21 Cal.4th 846, 858–859,
fn. 13, italics added; accord 1A Sutherland, Statutory
Construction (7th ed. 2023) § 20:3). Above all, they cannot be
relied upon as an interpretive tool when they contradict the
statute’s plain language, as they do here.
The organizational factors listed in the legislative finding
Farley cites, such as leadership and hierarchical decisionmaking,
are examples of formal organizational structure. (See, e.g.,
Prunty, supra, 62 Cal.4th at p. 73 [listing discernible hierarchy,
predictable meeting schedules, fixed membership, and codified
rules as hallmarks of formally organized groups].) Interpreting
“organized” to require a showing that a group must possess these
characteristics of a formal organization would directly contradict
the language of section 186.22(f) specifying that a criminal street
gang may be “formal or informal.” Another division of this court
21
recently came to the same conclusion, relying on the Legislature’s
retention of the “formal or informal” modifying language to reject
the argument that characteristics like those identified in
Assembly Bill 333’s findings were required for a group to qualify
as a “criminal street gang” under the amended statute. (People v.
Campbell (2023) 98 Cal.App.5th 350, 381 & fn. 24.) Farley’s
proposed interpretation of “organized” would render “formal or
informal” meaningless, in violation of the rule of statutory
construction that “direct[s] us to avoid, if possible, interpretations
that render a part of a statute surplusage.” (People v. Cole (2006)
38 Cal.4th 964, 981.)
Furthermore, in the course of amending Assembly Bill 333
before it was ultimately approved, the Legislature rejected
language for section 186.22(f) that would have required a
showing of formal organization to establish the existence of a
“criminal street gang.” Specifically, as introduced, Assembly
Bill 333 would have amended section 186.22(f) to define a
“criminal street gang” as a “ongoing organization, association, or
group . . . with an established hierarchy . . . .” (Assem. Bill 333,
§ 1, as introduced Jan. 27, 2021, italics added.) The committee
report when Assembly Bill 333 was introduced indicates that the
Legislature intended this language to abrogate Prunty. (Assem.
Com. on Public Safety, Rep. on Assem. Bill 333, as amended Mar.
30, 2021, p. 5.) That report quotes Prunty’s statement that
“gangs may constitute loosely coupled, amorphous organizations”
and that prosecutors need not “show that these groups resemble
formally structured, hierarchical enterprises such as businesses
22
or professional associations” and then notes that the bill would
have required proof of organization in the form of an established
hierarchy. (Ibid.) But later in the drafting process, even as it
added the finding on which Farley relies, in Assembly Bill 333’s
substantive provisions the Legislature replaced the requirement
of “an established hierarchy” with the “ongoing, organized
association or group” language. (Assem. Amend. to Assem.
Bill 333, May 28, 2021.) “As a general principle, the Legislature’s
rejection of specific language constitutes persuasive evidence a
statute should not be interpreted to include the omitted
language.” (Doe v. Saenz (2006) 140 Cal.App.4th 960, 985.)
Consequently, we reject the suggestion that that term
“organized” in section 186.22(f) should be interpreted to require
formal hallmarks of organizational structure, such as an
established hierarchy or the formal organizational characteristics
cited in the uncodified legislative findings. We construe the
Legislature’s rejection of the “established hierarchy” language
that would have abrogated Prunty as an implicit endorsement of
Prunty’s analysis regarding proof of informal organization.
Our Supreme Court’s recent decision in People v. Clark
(Feb. 22, 2024, S275746) ___ Cal.5th ___ [2024 Cal. Lexis 774]
(Clark) supports this interpretation. Clark quoted Assembly Bill
333’s legislative findings and declarations in the course of
analyzing Assembly Bill 333’s requirement that a criminal street
gang’s members “collectively” engage in a pattern of criminal
gang activity. (Clark, at *21.) The court concluded that
Assembly Bill 333 used both “ ‘collectively’ ” and “ ‘organized’ ” “in
23
service of the Legislature’s broader goal of differentiating
between the threat posed by organized groups collectively
engaged in criminal activity, versus the threat posed by
individual, loosely connected persons who happen to commit
crimes.” (Clark, at *23–*24.) Clark therefore held that the
amended statute now requires proof of an “organizational nexus”
in the form of “evidence linking the predicate offenses to the
gang’s organizational structure, meaning its manner of
governance; its primary activities; or its common goals and
principles.” (Id. at *25.) However, Clark cautioned that it did
“not mean to overstate the degree of formality required” to show
an organizational nexus, recognizing that “some gangs have a
‘ “loose” ’ structure” or “loosely defined goals and principles,”
while others have “a ‘well-defined’ hierarchy” or “clearly defined
missions.” (Id. at *25–*26.) Given Clark’s conclusion that
Assembly Bill 333 used “organized” and “collectively” to serve the
same legislative purpose, Clark’s observation applies with equal
force here and confirms our view that the term “organized” under
section 186.22(f) does not require proof of specific elements
demonstrating a formal organizational structure.
Amicus curiae Peace and Justice Law Center urges that
this court adopt a “workable standard” to establish when an
association or group qualifies as “organized” within the meaning
of section 186.22(f). Specifically, amicus argues that prosecutors
should have the burden of proving “that (1) the gang
distinguishes between members and non-members, (2) that the
gang is able to make collective decisions or ratify the acts or
24
decisions of members, and (3) the evidence of organization must
support the alleged scale and complexity of the gang.”
While the factors identified by amicus may bear upon
whether an association or group is “organized” under section
186.22(f), we decline to adopt a rigid set of organizational criteria
that must be established in all cases in order to satisfy the
statute’s requirements.6 The statute does not explicitly or
implicitly require a gang to have any particular type of
organizational structure, but instead provides generally that a
gang structure may be formal or informal. Given this expansive
statutory language, there is no single way to demonstrate the
organizational structure section 186.22(f) requires. (See Prunty,
supra, 62 Cal.4th at p. 77 [court did “not intend to place limits on
the theories that the prosecution may advance in attempting to
show that various neighborhood-based groups in fact constitute a
single ‘criminal street gang’ ”].) There are many different factors
that tend to establish a group is organized, and those factors may
exist to a greater or lesser degree in each case depending upon
the informal or formal organization of the group, the size of the
group, and other considerations. For that reason, prosecutors
should not be limited in the theories they may advance to prove
that an association or group is organized within the meaning of
6 We note, however, that Sergeant Jackson testified
regarding the differentiation between Page Street members,
associates, and non-members. And as further detailed below,
Jackson’s additional testimony was more than sufficient to
establish the existence of an “informal” organization at this stage
of the proceedings. (See section IV, post.)
25
section 186.22(f). (Cf. Clark, supra, ___ Cal.5th ___ [2024 Cal.
Lexis 774 at *26] [given the “variability” in formality of gangs’
organizational structures, “collective engagement will be
established in different ways”].)
IV. Evidence supporting conclusion that Page Street is
organized
With this understanding of the statute and bearing in mind
the “low evidentiary bar” to establish probable cause in
opposition to a section 995 motion, we have no difficulty
concluding there is sufficient evidence that Page Street is
organized within the meaning of section 186.22(f) to allow the
prosecution to proceed. (People v. Scully (2021) 11 Cal.5th 542,
582.)
Sergeant Jackson opined that Page Street was a gang in
2015, when the alleged crimes were committed. As the basis for
this opinion, Sergeant Jackson explained that Page Street is
“informal but organized” and its members have changed over
time, but it is a longstanding organization that had 10 members
in 2015. Page Street has different names (including Zone 4 and
Zone 6), a defined gang safety zone or “turf,” symbols (4, 400, and
6), hand signs, and common enemies. Sergeant Jackson
distinguished between members, associates, and those not
affiliated with Page Street based upon the individuals’ level of
activity with the gang. Page Street does not have leader roles in
the sense of one individual giving instruction and other members
responding. But some members have greater influence, which
comes from having money, knowing how to make money, or
26
knowing how to acquire things necessary for the gang to commit
crimes, such as firearms.
Page Street is also organized in the sense that members
have particular roles to play in carrying out crimes together.
According to Sergeant Jackson, younger members of Page Street,
like other gangs, elevate their status by committing increasingly
serious crimes, such as transitioning from burglaries to home
invasion. Older members of a gang will teach younger members
how to conduct themselves and make money. Gang members will
use phrases such as “put me on” or “I put someone on” to describe
this type of relationship. Like other gangs, members of Page
Street split the proceeds of its crimes. As evidence of this for
Page Street, Sergeant Jackson cited videos in which gang
members displayed hundreds of thousands of dollars in cash
collectively, despite the fact that they had never been employed.
And as noted, Sergeant Jackson testified that in one music video
exhibit introduced into evidence, several Page Street members
described themselves as “Page Street young’ns,” displayed
firearms, and expressly described themselves as a “gang.”
Taken together, this evidence supports the existence of an
informally organized group that is “united by something in
common beyond pure happenstance.” (Prunty, supra, 62 Cal.4th
at p. 73; see id. at p. 79 [prosecution can demonstrate subsets are
part of same gang with evidence that they “mutually
acknowledge one another as part of that same organization”];
Rodas-Gramajo v. Superior Court (2023) 92 Cal.App.5th 656,
666–667 [at preliminary hearing, prosecution “mostly
27
established” that a group qualified as a “criminal street gang”
under § 186.22(f) by presenting evidence of the group’s history,
number of members, identifying signs and symbols, and criminal
activities; remand under § 995a was necessary only for
prosecution to address other new elements Assembly Bill 333
added to § 186.22], disapproved on another ground by Clark,
supra, ___ Cal.5th ___ [2024 Cal. Lexis 774 at *30, fn. 8].)
Farley complains that Sergeant Jackson mistakenly
focused on whether the crimes were organized instead of whether
the association or group was organized. This argument lacks
merit. What we have here is far more than a collection of
individuals who happen upon opportunities to commit crimes
together randomly or in ad hoc ways. Contrary to Farley’s
contention, the testimony offered by Sergeant Jackson bearing
upon the group’s associational ties was not limited to the
organized or collaborative nature of the crimes. In any event,
evidence that members of a group play defined roles in
committing their crimes tends to show the existence of an
organizational relationship within the group. (See Prunty, supra,
62 Cal.4th at pp. 78–79 [“In general, evidence that shows subset
members have communicated, worked together, or share a
relationship (however formal or informal) will permit the jury to
infer that the subsets should be treated as a single street gang”];
cf. Clark, supra, ___ Cal.5th ___ [2024 Cal. Lexis 774 at *26–*27]
[collective engagement may be shown by evidence that members
play different specific roles in gang’s crimes].) When a group
lacks a structured, identifiable hierarchy or similarly formal
28
signs of organization, it may be appropriate to consider whether
the group’s conduct manifests the hallmarks of an organized
group. (See Prunty, supra, 62 Cal.4th at p. 78 [when “formal
structure or hierarchy” is not present, evidence of collaboration
and shared activity between members of different subsets of a
gang, such as evidence that members “ ‘work[ed] in concert to
commit a crime’ ” or “strategized, formally or informally, to carry
out their activities,” will permit the inference that the subsets
have an informal relationship].)
A street gang for purposes of Assembly Bill 333 can hardly
be expected to declare publicly that it is formally organized in the
way that a licensed business organization does, thereby allowing
the public to identify it and hold its members responsible for its
activities. As a result, evidence that a group’s crimes are
organized is directly relevant to the question of whether the
group itself is organized. Moreover, conduct has always been the
basis for imposing enhanced penalties on members of criminal
street gangs, for “the STEP Act punishes conduct, not
association.” (People v. Loeun (1997) 17 Cal.4th 1, 11.)
Considered as a whole, Sergeant Jackson’s testimony
demonstrates (i) differentiation between Page Street members
and non-members; (ii) certain Page Street members having more
influence than others; (iii) a division of roles among Page Street
members that facilitates successful, coordinated completion of
crimes; (iv) discernible criteria for Page Street members to
elevate their status within the organization; and (v) discernible
methods of passing on criminal know-how from more experienced
29
to less experienced members. While other factors and evidence
may be relevant in other cases (including, for example, gang
members’ use of coded language for surreptitious
communication), at this stage of the proceedings, the
prosecution’s evidence in this case amply supports an inference
that Page Street has a sufficient level of operational structure to
qualify as an “informal” organization. The prosecution should
therefore be allowed to proceed to trial on the gang-related count,
allegations, and enhancements alleged against Farley. (See
Zemek v. Superior Court, supra, 44 Cal.App.5th at p. 545 [“ ‘[w]e
will not set aside an information “if there is some rational ground
for assuming the possibility that an offense has been committed
and the accused is guilty of it” ’ ”].)
DISPOSITION
A peremptory writ of mandate shall issue directing
respondent superior court to vacate its order granting Farley’s
section 995 motion in part and to enter a new and different order
denying the motion in its entirety. The stay previously issued by
this court shall be dissolved upon the issuance of the remittitur.
BROWN, P. J.
WE CONCUR:
STREETER, J.
SMILEY, J.
Judge of the Superior Court of California, County of
Alameda, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
30
People v. San Francisco City & County Superior Court (A168018)
31
Trial Court: San Francisco City & County Superior Court
Trial Judge: Hon. Rochelle East, Hon. Charles Crompton
Counsel: Brooke Jenkins, District Attorney, Heather
Trevisan, Nathan Quigley, and Natalie Fuchs,
Assistant District Attorneys for Plaintiff and
Petitioner.
No appearance for Respondent.
Peter Fitzpatrick for Real Party in Interest.
Peace and Justice Law Center, Sean Garcia-
Leys as Amicus Curiae on behalf of Real Party
in Interest.