Superior Court: Kern County Super. Ct. Nos. BF122135A, BF122135B, BF122135C, Ct.App. 5 F057736, Gary T. Friedman Judge,
Susan D. Shors, under appointment by the Supreme Court, for Defendant and Appellant Corey Ray Johnson.
Joseph Shipp, under appointment by the Supreme Court, for Defendant and Appellant Joseph Kevin Dixon.
Sharon G. Wrubel, under appointment by the Supreme Court, for Defendant and Appellant David Lee, Jr.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Susan Lee, Acting Solicitor General, Donald E. de Nicola, Deputy State Solicitor General, Michael P. Farrell, Assistant Attorney General, Brian G. Smiley and Laura Wetzel Simpton, Deputy Attorneys General, for Plaintiff and Respondent.
We granted review to decide whether one may conspire to actively participate in a criminal street gang. One can. When an active gang participant possessing the required knowledge and intent agrees with fellow gang members to commit a felony, he has also agreed to commit the gang participation offense. That agreement constitutes conspiracy to commit the offense of active gang participation, and may be separately charged once a conspirator has committed an overt act.
Defendants Corey Ray Johnson, Joseph Kevin Dixon, and David Lee, Jr., were part of a 200-member Bakersfield gang called the Country Boy Crips (CBC). CBC’s rival gangs included the Eastside Crips and the Bloods. Dupree Jackson, a CBC member, testified for the prosecution under a grant of immunity. He was defendant Johnson’s cousin and sold drugs for the gang. He described the gang’s structure and the different roles members filled. Some sold drugs. Some patrolled the boundaries of the gang’s territory to keep out enemies and outsiders. Some would “hang out, ” and some were “pretty boys” who brought women into the gang. Others would “ride with the guns” to seek out and kill enemies. Defendant Johnson sold drugs and was also a shooter for the gang with the moniker “Little Rifleman.” Defendant Dixon was considered a gang leader because he had been to prison and had family ties to the gang. Defendant Lee would sell drugs, obtain cars, and drive for and “ride” with other gang members.
Testimony of several witnesses established that between March and August 2007, defendants were involved in various retaliatory shootings against perceived rivals. On March 21, 2007, members of the Bloods shot Lee. He and Johnson retaliated by shooting Bloods member Edwin McGowan. Lee was fired upon again the following day. All three defendants were then involved in a retaliatory shooting on April 19, 2007, outside an apartment in Eastside Crips territory. Vanessa Alcala and James Wallace, neither of whom was a gang member, were killed during the incident. Ms. Alcala was pregnant. Anthony Lyons was also shot but survived. On August 9, 2007, a fellow CBC member was shot and killed. Defendants and Jackson identified the shooter, armed themselves, and drove to the home of the shooter’s father. They intended to retaliate but were scared away when a car drove by. Two days later, Johnson, accompanied by Dixon and Lee, shot Adrian Bonner, a Bloods associate, paralyzing him. Jackson related statements Johnson and Dixon made about the shootings.
Johnson’s girlfriend, Sara Augustin, also testified under a grant of immunity. She recounted various statements Lee and Johnson made about their involvement in the shootings. DNA testing of clothing found near the apartment shooting scene was linked to defendants, primarily to Johnson. Cell phone records reflected Dixon’s and Lee’s cell phones were at the location of the various shootings and were used to call each other or other CBC members before and after the events. Various witnesses gave descriptions of the participants that matched all three defendants.
The jury convicted all defendants of three counts of first degree murder with multiple-murder and gang-murder special circumstances, two counts of attempted murder, shooting at an occupied vehicle, active gang participation, and conspiracy,  as well as various enhancements. Conspiracy was charged as a single count against each defendant. That count alleged each had engaged in conspiracy to commit felony assault, robbery, murder, and gang participation. The jury found each defendant guilty of conspiracy as charged. All defendants received three terms of life without the possibility of parole for the murder counts. Dixon received an additional term of 238 years to life, while Johnson and Lee received additional terms of 196 years to life. Those terms included a term of 25 years to life for conspiracy as to Johnson and Lee, and 50 years to life as to Dixon (25 years to life, doubled under the “Three Strikes” law).
As relevant here, the Court of Appeal held that conspiracy to actively participate in a criminal street gang did not qualify as a crime. It affirmed the conspiracy convictions, however, because each was also based on the valid theory of conspiracy to commit ...