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The People v. Albert andrew Albillar et al

December 20, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ALBERT ANDREW ALBILLAR ET AL., DEFENDANTS AND APPELLANTS.



Super. Ct. No. 2005044985 Ventura County

The opinion of the court was delivered by: Baxter, J.

Ct.App. 2/6 B194358

Defendants Albert Albillar, Alex Albillar, and John Madrigal stand convicted by a jury of forcible rape while acting in concert (Pen. Code, §§ 261, subd. (a)(2), 264.1), forcible sexual penetration while acting in concert (id., §§ 289, subd. (a)(1), 264.1), and active participation in a criminal street gang (id., § 186.22, subd. (a)). The jury further found that the sex offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members. (Id., § 186.22, subd. (b).) Defendants challenge the sufficiency of the evidence supporting their convictions of the substantive gang offense as well as the gang enhancements. This appeal raises three issues.

The first involves the substantive offense defined by Penal Code section 186.22, subdivision (a) (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." Does this offense include an unwritten requirement that the "felonious criminal conduct" that is promoted, furthered, or assisted be gang related? We conclude it does not.

The remaining issues involve the enhancement defined by Penal Code section 186.22, subdivision (b)(1) (section 186.22(b)(1)), which adds specified 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." Was there sufficient evidence to support the first prong--i.e., that the charged sex offenses were "committed for the benefit of, at the direction of, or in association with" a criminal street gang? And does the second prong require evidence that the charged sex offenses were committed with the specific intent to promote, further, or assist other criminal conduct by the gang--i.e., gang-related criminal conduct apart from the charged offenses? We conclude that these offenses were committed for the benefit of and in association with the gang. We also conclude, in accordance with the plain language of the enhancement, that the scienter element of the enhancement requires only "the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22(b)(1), italics added.)

We therefore affirm the judgment of the Court of Appeal.

BACKGROUND

In December 2004, twin brothers Albert and Alex Albillar and their cousin, John Madrigal, lived in an apartment in Thousand Oaks. All three defendants were in their 20's. All three were also members of the Southside Chiques gang.

On December 29, 2004, the three defendants met up with 15-year-old Amanda M., her friend, 14-year-old Carol M., and a third girl, Adriana, who was 16. Amanda knew that Alex and Albert were gang members but was not afraid of them, since neither of them had ever threatened her. But when Amanda was alone with the three defendants, Albert suggested to Amanda that they "have a foursome." Amanda, who did not have a "romantic relationship" with any of the defendants, replied "no" in a laughing manner. She did not think he was serious.

Later on, the group went to defendants' apartment. Albert brought Carol to the bedroom. He took off her pants and licked her vagina. After asking for her consent and hearing no reply, he engaged in sexual intercourse with her. Carol became upset, though, and told him to stop. He immediately withdrew. When she came out of the room, alone, she was crying and said she wanted to go home.

Defendants and the three girls got back in the car. Carol and Adriana were dropped off separately. On the way to Amanda's house, one of the defendants said he needed to make a stop at their apartment to use the bathroom, so Amanda accompanied them as they returned to the apartment. Amanda believed the stop would be brief and telephoned Carol to tell her so.

Once at the apartment, though, Albert told Amanda he wanted to talk to her alone in the bedroom. He told her he had engaged in oral sex and sexual intercourse that evening with Carol but had stopped "right away" when she told him to stop. Albert then kissed Amanda and removed her jeans. When Alex and Madrigal opened the bedroom door and asked if they could "get in," Amanda yelled, "No. Get out." But Alex and Madrigal paid her no heed. Albert moved off Amanda and grabbed one of her legs, while Madrigal grabbed the other, spreading her legs apart. Alex, who weighed considerably more than Amanda, climbed on top of her and pinned her hands above her head with one arm. He used the other to push her panties to one side and digitally penetrated her vagina. Amanda struggled to close her legs and told defendants to get away from her, but Alex had his full body weight on top of her, and Albert and Madrigal continued to hold her legs apart. Meanwhile, Alex withdrew his finger, inserted his penis, and raped her.

When Alex finished, Madrigal got on top of her. He had a Southside Chiques gang tattoo on his face, but Amanda slapped him. He replied in a threatening manner, "You don't even know what you just did," bit her thigh and shoulder, and thrust his fingers in her vagina. He attempted to kiss her on the mouth, but she moved her head back and forth, and told him repeatedly "no," "stop," and "get off me." Although Amanda tried to push Madrigal away, he proceeded to rape her--while the two other defendants stood in the doorway watching and giggling.

Amanda tried to get up after Madrigal had finished, but Albert pushed her back on the bed, climbed on top of her, and stuck his fingers into her vagina. She told him to stop, but he did not listen. Instead, he withdrew his fingers and raped her. Amanda continued to protest and then tried to pretend the rape was not happening. Albert ended by ejaculating on her stomach. Defendants subsequently drove her home.

Amanda originally did not want to tell anyone what had happened because "she feared that since the suspects were gang members they [would] come after her family." After some coaxing, though, Amanda told her younger sister and a few friends what was wrong and what had happened to her. When defendants became aware of the allegations Amanda was making, Amanda received a telephone call from Jazmin Sarabia, whose boyfriend was a Southside Chiques gang member and who was herself friends with defendants. Jazmin warned that Amanda and her family could be hurt if they told the police. Amanda became fearful for her family and decided to tell her parents what happened. They then contacted the police. Before the police were notified, though, Amanda and her mother also received threatening telephone calls from Albert's girlfriend, Carol M., as well as from Jazmin.

Oxnard Police Detective Neail Holland testified as an expert about gangs in Oxnard and the Southside Chiques gang in particular. Southside Chiques, whose membership is mostly Hispanic, claims part of Oxnard as its "turf," although its crimes are not limited to that specific geographic area. The gang has engaged in a pattern of "violent and vicious and brutal" crimes against a wide assortment of victims--"rival gangs, residents within their community, residents outside their community, family members, people that are close to them and even members within their own gang."

Southside Chiques gang members obtain status within the gang through various means, including committing crimes and assisting other gang members in committing crimes. Gang members commit crimes together to increase their chances of success, to bolster their confidence in one another, and to enable the participants to boast about each other's criminal endeavors to those were not present, since gang members would not necessarily increase their status by "going out and committing crimes by themselves and then coming back and bragging about it to the rest of the gang with absolutely no proof of its occurrence." Alternatively, a gang member could lose status by "not supporting gang members when they're out committing crimes or committing gang activities." Gang members also rely on intimidation and violence to gain "respect" in the community and to further the gang's interests.

In responding to a hypothetical based on the circumstances of this gang rape, Holland opined that such a crime would have been committed for the benefit of, at the direction of, or in association with a criminal street gang. His opinion was based on the way in which the gang members worked cooperatively to accomplish the rapes, the brutality and viciousness of the crimes, and the enhancement to the reputations for violence and viciousness of the gang and the participating gang members.

A jury convicted defendants of the forcible rape of Amanda M. while acting in concert and the forcible rape of Amanda M. by a foreign object while acting in concert, both of which were committed for the benefit of, at the direction of, or in association with a criminal street gang. The jury also found that all defendants had actively participated in a criminal street gang. Albert was convicted of the additional offense of unlawful sexual intercourse with a minor, Carol M. (Pen. Code, § 261.5, subd. (c).) The trial court sentenced Albert to 20 years in prison, Alex to 24 years and four months, and Madrigal to 19 years and four months.

The Court of Appeal affirmed in a published opinion. As pertinent here, the Court of Appeal rejected defendants' challenge to the sufficiency of the evidence underlying the substantive gang offense and the gang enhancements. We granted defendants' petitions for review, limited to the question whether substantial evidence supported the convictions under sections 186.22(a) and 186.22(b)(1), which are part of the Street Terrorism Enforcement and Prevention Act (STEP Act).

I THE SUFFICIENCY OF THE EVIDENCE SUPPORTING THE SUBSTANTIVE GANG OFFENSE (§ 186.22(a))

Defendants were convicted of violating section 186.22(a), which provides: "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 . . . ." Defendants contend that this gang offense includes an implied requirement that the felonious criminal conduct be gang related, and that the record is devoid of evidence that the criminal conduct they promoted, furthered or assisted was gang related. We conclude, in accordance with the text of the statute, that a violation of section 186.22(a) is established when a defendant actively participates in a criminal street gang with knowledge that the gang's members engage or have engaged in a pattern of criminal activity, and willfully promotes, furthers, or assists in any felonious criminal conduct by gang members.

We begin with the familiar canon that, when construing statutes, our goal is " ' "to ascertain the intent of the enacting legislative body so that we may adopt the construction that best effectuates the purpose of the law." ' " (City of Santa Monica v. Gonzalez (2008) 43 Cal.4th 905, 919.) "We first examine the words of the statute, 'giving them their ordinary and usual meaning and viewing them in their statutory context, because the statutory language is usually the most reliable indicator of legislative intent.' " (Ibid.) " 'If the language of the statute is not ambiguous, the plain meaning controls and resort to extrinsic sources to determine the Legislature's intent is unnecessary.' " (People v. Traylor (2009) 46 Cal.4th 1205, 1212.)

As defendants Albert Albillar and Alex Albillar concede, section 186.22(a) is not facially ambiguous. (See People v. Castenada (2000) 23 Cal.4th 743, 752 ["Through section 186.22(a)'s plainly worded requirements--criminal knowledge, willful promotion of a felony, and active participation in a criminal street gang--our Legislature has made it reasonably clear what conduct is prohibited"].) The provision criminalizes active participation in a criminal street gang by a person who has the requisite knowledge and who "willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang." (§ 186.22(a), italics added.) The plain language of the statute thus targets felonious criminal conduct, not felonious gang-related conduct. Where there is no ambiguity in the statutory text, " 'then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs.' " (Lennane v. Franchise Tax Bd. (1994) 9 Cal.4th 263, 268.)

"[J]udicial construction of unambiguous statutes is appropriate only when literal interpretation would yield absurd results." (Simmons v. Ghaderi (2008) 44 Cal.4th 570, 583.) But there 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.)

The gravamen of the substantive offense set forth in section 186.22(a) is active participation in a criminal street gang. We explained in People v. Castenada, supra, 23 Cal.4th 743, that the phrase "actively participates" reflects the Legislature's recognition that criminal liability attaching to membership in a criminal organization must be founded on concepts of personal guilt required by due process: "a person convicted for active membership in a criminal organization must entertain 'guilty knowledge and intent' of the organization's criminal purposes." (Id. at p. 749.) Accordingly, the Legislature determined that the elements of the gang offense are (1) active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; (2) knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and (3) the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang. (People v. Lamas (2007) 42 Cal.4th 516, 523.) All three elements can be satisfied without proof the felonious criminal conduct promoted, furthered, or assisted was gang related.

The Legislature clearly knew how to draft language limiting the nature of the criminal conduct promoted, furthered, or assisted and could have included such language had it desired to so limit the reach of section 186.22(a). Indeed, the Legislature did exactly that in the subdivision immediately following--i.e., section 186.22(b)(1), which provides for an enhanced sentence 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 . . . ." (Italics added.) " '[W]hen different words are used in contemporaneously enacted, adjoining subdivisions of a statute, the inference is compelling that a difference in meaning was intended.' " (Kleffman v. Vonage Holdings Corp. (2010) 49 Cal.4th 334, 343.)

The absence of ambiguity in the statutory language dispenses with the need to review the legislative history. We note, however, that the legislative history is consistent with a plain language construction of the statute. Senate Bill No. 1555 (1987-1988 Reg. Sess.) (Senate Bill No. 1555), the bill that as chaptered as Statutes 1988, chapter 1256, eventually enacted the first Penal Code section 186.22, included in its original form a gang-related-activity requirement of the type defendants now ask us to impose. The original bill created a separate offense for "[a]ny person who actively conducts or participates, directly or indirectly, in any gang, with the specific intent to promote or further any of its criminal gang-related activity or to assist in continuing its pattern of criminal gang-related activity. . . ." (Sen. Bill. No. 1555, as introduced Mar. 6, 1987, § 1, p. 5, italics added [proposing Pen. Code, § 186.13, subd. (a)].) When amended to consolidate the substantive gang offense and create a separate enhancement on May 22, 1987, the italicized language was deleted throughout. The amended bill added a new section 186.22 to the Penal Code, which provided that "[a]ny person who actively participates in any criminal street gang with knowledge that its members or participants engage in or have engaged in a pattern of criminal gang activity" was guilty of a felony if the person "willfully promotes, furthers, or assists in any criminal conduct by gang members or participants," and provided for an alternative felony-misdemeanor "wobbler" if the person has "the specific intent to promote, further, or assist in any criminal conduct by its members or participants." (Sen. Bill No. 1555, as amended May 22, 1987, § 1, pp. 10-11, italics added.) Subsequent amendments deleted the specific intent requirement, deleted the reference to "participants," and added the word "felonious" to the "criminal conduct" that was promoted, furthered, or assisted, so that the definition of the gang offense, a wobbler, read (as the current version of § 186.22(a) still reads): "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 . . . ." (Sen. Bill No. 1555, as amended June 23, 1987, § 1, pp. 5-6; former § 186.22(a), as enacted by Stats. 1988, ch. 1256, § 1, p. 4179, repealed and reenacted by Stats. 1989, ch. 930, §§ 5, 5.1, pp. 3251, 3253.) The elimination of the bill's original requirement that the felonious conduct be gang related is "significant indicia of legislative intent." (Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1192.)

Defendants cite to a number of letters and reports submitted by various persons and groups to the Legislature in support of Senate Bill No. 1555. In purporting to summarize the effect of the proposed legislation, these materials often referred to the need for stricter laws against "gang-related" activity. Some of these materials predated the May 22, 1987, amendments and thus did not purport to address the language that was ultimately enacted, while others do not appear to distinguish between the substantive crime set forth in section 186.22(a) and the enhancement set forth in section 186.22(b)(1). In any event, summaries submitted to the Legislature by outside parties cannot alter the plain statutory language the Legislature actually enacted, which contains no requirement that the felonious criminal conduct be gang related. (Exxon Mobil Corp. v. Allapattah Services, Inc. (2005) 545 U.S. 546, 568; cf. Vasquez v. State of California (2008) 45 Cal.4th 243, 252-253.)

Defendants argue next that even if the statute does not include a requirement that the felonious criminal conduct be gang related, the federal Constitution would compel one. In their view, omission of such a requirement would create a status offense in violation of Scales v. United States (1961) 367 U.S. 203. Scales, however, is distinguishable. The statute at issue in Scales made "a felony the acquisition or holding of knowing membership in any organization which advocates the overthrow of the Government of the United States by force or violence." (Id. at p. 205.) The high court construed the statute to require active membership and, as so construed, upheld it despite the absence of any element requiring a specific act of criminality, placing active membership in the same category as criminal conspiracy and complicity--"particular legal concepts manifesting the more general principle that society, having the power to punish dangerous behavior, cannot be powerless against those who work to bring about that behavior." (Id. at p. 225.)

In People v. Castenada, supra, 23 Cal.4th 743, we noted that section 186.22(a) similarly required active participation in the gang, which means evidence that the defendant's involvement is more than nominal or passive. (Id. at p. 745.) "Under Scales, the due process requirement that criminal liability rest on personal guilt means simply that a person convicted for active membership in a criminal organization must entertain 'guilty knowledge and intent' of the organization's criminal purposes." (Id. at p. 749.) "This explains why the Legislature expressly required in section 186.22(a) that a defendant not only 'actively participates' in a criminal street gang . . . but also that the defendant does so with 'knowledge that [the gang's] members engage in or have engaged in a pattern of criminal gang activity,' and that the defendant 'willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.' These 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 . . . ." (Castenada, supra, 23 Cal.4th at p. 749; accord, Holder v. Humanitarian Law Project (2010) ___ U.S. ___, ___ [130 S.Ct. 2705, 2718.].)

We also said in Castenada that the phrase "actively participates" needs no further description to prevent arbitrary law enforcement and provide adequate notice to potential offenders, explaining that to participate "actively" in an enterprise means an involvement that is more than nominal or passive (People v. Castenada, supra, 23 Cal.4th at p. 747), and that the distinction between active and nominal participation is well understood in common parlance (id. at p. 752). Although unnecessary to our decision, we added: "every person incurring criminal liability under section 186.22(a) has aided and abetted a separate felony offense committed by gang members. [Citation.] By linking criminal liability to a defendant's criminal conduct in furtherance of a street gang, section 186.22(a) reaches only those street gang participants whose gang involvement is, by definition, 'more than nominal or passive.' " (People v. Castenada, supra, at p. 752.) Defendants insist our reference in Castenada to "criminal conduct in furtherance of a street gang" evidences our agreement with their argument that section 186.22(a) would pass constitutional muster only if it were to link a defendant's criminal liability to a separate felony offense committed by street gang members in furtherance of the gang. But we made the quoted statement in response to a different argument, i.e., that the phrase "actively participates" fails to provide fair warning of the conduct section 186.22(a) prohibits, pointing out that Castenada reasonably would have understood that his crime committed in furtherance of the gang was evidence of active participation. (Castenada, supra, at p. 752.) We were not presented in Castenada with the specific argument ...


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