Court: Superior County: Yuba Judge: James L. Curry Super. Ct. No. CRF07288 Ct.App. 3 C060227
The opinion of the court was delivered by: Corrigan, J.
We are again called upon to construe Penal Code section 186.22,*fn1 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.)*fn2
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 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.
Defendant was a Norteno 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 Norteno 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.*fn3
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.
"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.)*fn4
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 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).)*fn5
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 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.
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.)"*fn6
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 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 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.*fn7 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 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 ...