People v. Castenada

Opinion

For the fourth time in roughly as many years, we construe Penal Code section 186.22, a provision of the California Street Terrorism

The usual and ordinary meaning of “actively” is “being in a state of action; not passive or quiescent” (American Heritage Diet. (3d ed. 1992) p. 18), “characterized by action rather than contemplation or speculation” (Webster’s 3d New Intemat. Diet. (1961) p. 22). The usual and ordinary meaning of “participates” is “to take part in something (as an enterprise or activity).” (Id. at p. 1646.) In summary, one “actively participates” in some enterprise or activity by taking part in it in a manner that is not passive. Thus, giving these words their usual and ordinary meaning, we construe the statutory language “actively participates in any criminal street gang” (§ 186.22(a)) as meaning involvement with a criminal street gang that is more than nominal or passive.

Ill

In People v. Green (1991) 227 Cal.App.3d 692 , 700 [ 278 Cal.Rptr. 140 ] {Green), the Court of Appeal construed section 186.22(a)’s language “[a]ny person who actively participates in any criminal street gang” as referring to a person whose relationship with a criminal street gang is (1) “more than nominal, passive, inactive or purely technical,” and who (2) devotes “all, or a substantial part of his time and efforts to the criminal street gang.” (Italics added.) In this case, the Court of Appeal had this to say about the word “substantial” in Green: “A ‘substantial’ amount of time does not mean any particular amount or percentage. Instead, substantial means ‘true or real; not imaginary.’ ” Using this standard, the Court of Appeal here concluded there was sufficient evidence that defendant “actively participates” in the Golden-west gang. Defendant contends the Court of Appeal misinterpreted the Green court’s use of the word “substantial,” insisting that to fall within the Green test, a defendant must have a leadership position in the gang. Implicit in defendant’s contention is the assumption that we agree with Green that section 186.22(a)’s phrase “[a]ny person who actively participates in any criminal street gang” means a person who at least devotes “a substantial part of his time and efforts” to a criminal street gang. As we explain, we do not.

The Court of Appeal in Green, supra, 227 Cal.App.3d 692 , relied on two different due process principles in construing the phrase “actively participates,” which is an element of the crime defined in section 186.22(a). It first

Later, in discussing the sufficiency of the evidence to satisfy that standard, Scales noted the defendant held a leadership position in the Communist Party, directed a party training school, and advised other members on party doctrine. (Scales, supra, 367 U.S. at pp. 254-255 [81 S.Ct. at p. 1499].) The court then observed: “Scales’s ‘active membership’ in the Party is indisputable, and that issue was properly submitted to the jury under instructions that were entirely adequate.” (Ibid.) In a footnote, the high court mentioned this part of the trial court’s jury instruction: “ ‘In determining whether he was an active or inactive member, consider how much of his time and efforts he devoted to the Party. To be active he must have devoted all, or a substantial part, of his time and efforts to the Party.’ ” (Scales, supra, 367 U.S. at p. 255, fn. 29 [81 S.Ct. at p. 1499], italics added.) Relying on the italicized language, the Court of Appeal in Green construed section 186.22(a)’s phrase “[a]ny person who actively participates in any criminal street gang” as meaning a person who devotes “all, or a substantial part, of his time and efforts to the criminal street gang.” (Green, supra, 227 Cal.App.3d at p. 700.) Green erred in concluding that the United States Supreme Court’s decision in Scales mandated this construction.

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. (Scales, supra, 367 U.S. 203 , 228 [ 81 S.Ct. 1469 , I486].) 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. (See Assem. Com. on Pub. Safety, Analysis of Assem. Bill No. 2013 (1987-1988 Reg. Sess.) June 8, 1987, p. 7 [noting the Scales holding 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”].) This explains why the Legislature expressly required in section 186.22(a) that a defendant not only “actively participates” in a criminal street gang (the phrase at issue here), 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, as we explain.

As we mentioned earlier, the high court in Scales, supra, 367 U.S. 203 , 228 [ 81 S.Ct. 1469 , 1485-1486], held that the Smith Act satisfied the due process requirement of personal guilt by requiring proof of a defendant’s active membership in a subversive organization with knowledge of and an intent to further its goals. Here, 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. Thus, a person who violates section 186.22(a) has also aided and abetted a separate felony offense committed by gang members, as the Court of Appeal in Green, supra, 227 Cal.App.3d 692 , 703-704, acknowledged. (Ibid, [anyone violating § 186.22(a) “would also ... be criminally liable as an aider and abettor to any specific crime” committed by the gang’s members]; see generally People v. Beeman (1984) 35 Cal.3d 547 , 560 [ 199 Cal.Rptr. 60 ,

In support of the Court of Appeal’s construction in Green of the statutory phrase “actively participates,” which is an element of the crime defined in section 186.22(a), defendant here contends it accurately reflects legislative intent. Defendant notes that before section 186.22(a)’s enactment, its opponents argued it would impose criminal liability on someone who was only peripherally involved with a criminal street gang. (See Assem. Com. on Pub. Safety, Analysis of Assem. Bill No. 2013, supra, June 8, 1987, p. 4.) Its sponsors replied: “The bill as written will not apply to the so called casual member. To be held criminally culpable, gang members must have the requisite specific intent and knowledge. AB 2013, in fact, goes beyond the active membership test in Scales[, supra, 367 U.S. 205 ], by requiring active participation, rather than mere membership.” (Assem. Com. on Pub. Safety, Reply Mem., Assem. Bill No. 2013, supra, June 8, 1987, p. 2, italics added.) According to defendant, the italicized sentence in the sponsors’ response reflects an intent to limit section 186.22(a)’s phrase “actively participates” to someone who devotes all, or a substantial amount of time and efforts to a criminal street gang and has a leadership position in the gang. We are not persuaded. The sponsors’ reply appears to state (albeit not with great clarity) what we have concluded here: a person liable under section 186.22(a) must aid and abet a separate felony offense committed by gang members. In that way, as the bill’s proponents stressed, section 186.22(a) “goes beyond the active membership test in Scales,” which allowed the criminal conviction of anyone holding active membership in a subversive organization, without requiring that the member aid and abet any particular criminal offense committed by other members.

Defendant here points out that the legislative findings supporting the STEP Act affirm “the constitutional right of every citizen to harbor and express beliefs on any lawful subject whatsoever [and] to lawfully associate with others who share similar beliefs.” (§ 186.21.) To ensure that section 186.22(a) not infringe upon these constitutional protections, defendant argues, the Legislature must have intended section 186.22(a)’s element “actively participates” to incorporate the part of the jury instruction definition of “active membership” the high court in Scales quoted in the footnote in question. (See Scales, supra, 367 U.S. 203 , 255, fn. 29 [ 81 S.Ct. 1469 , 1499] [referring to the trial court’s instruction to the jury describing an active member of the Communist Party as one who “ ‘devoted all, or a substantial part, of his time and efforts to the Party’ ”].) We reject defendant’s argument. As we have explained, section 186.22(a) imposes criminal liability not

To support its construction of the phrase “actively participates” in section 186.22(a), the Court of Appeal in Green relied not only on the due process concept of personal guilt articulated in Scales, supra, 367 U.S. 203 , which we just discussed, but also on the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders. (Green, supra, 227 Cal.App.3d 692 , 700.) These protections are embodied in the due process clauses of both the federal and California Constitutions. (U.S. Const., Amends V, XIV; Cal. Const., art. I, § 7.) They are often referred to collectively as the “fair warning” rule. (United States v. Lanier (1997) 520 U.S. 259 , 265 [ 117 S.Ct. 1219 , 1224-1225, 137 L.Ed.2d 432 ]; see Grayned v. City of Rockford (1972) 408 U.S. 104 , 108 [ 92 S.Ct. 2294 , 2298-2299, 33 L.Ed.2d 222 ]; People v. Franklin (1999) 20 Cal.4th 249 , 253-254 [ 84 Cal.Rptr.2d 241 , 975 P.2d 3Ó].)

The fair warning rule is generally associated with this statement by United States Supreme Court Justice Oliver Wendell Holmes in a 1931 decision: “Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.” (McBoyle v. United States (1931) 283 U.S. 25 , 27 [ 51 S.Ct. 340 , 341, 75 L.Ed. 816 ], italics added.)

The due process concept of fair warning is the underpinning of the vagueness doctrine, which “bars enforcement of ‘a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’ ” (United States v. Lanier, supra, 520 U.S. 259 , 266 [ 117 S.Ct. 1219 , 1225], quoting Connally v. General Construction Co. (1926) 269 U.S. 385 , 391 [ 46 S.Ct. 126 , 127, 70 L.Ed. 322 ]; Lanzetta v. New Jersey (1939) 306 U.S. 451 , 453 [ 59 S.Ct. 618 , 619, 83 L.Ed. 888 ] [“No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.”].) Recently, the United States Supreme Court had this to say on the topic: “Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement.” (Chicago v. Morales (1999) 527 U.S. 41 , 56 [ 119 S.Ct. 1849 , 1859, 144 L.Ed.2d 67 , 72 A.L.R.5th 665 ].)

Defendant does not contest here that through the robbery and attempted robbery in this case, he “promote[d], further[ed], or assisted]” felonious criminal conduct of the Goldenwest gang in violation of section 186.22(a). Nor does he suggest that those crimes were other than felonies “committed for the benefit of, at the direction of, or in association with” a criminal street gang, thus supporting the enhanced criminal penalties the trial court imposed under section 186.22, subdivision (b)(1). To summarize, through evidence of the crimes defendant here committed, his many contacts on previous occasions with the Goldenwest criminal street gang, and his admissions by bragging to police officers on those occasions of gang association or membership, the prosecution presented sufficient proof that defendant “actively participate^]” in a criminal street gang within the meaning of section 186.22(a).

Disposition

We affirm the judgment of the Court of Appeal, upholding defendant’s conviction under section 186.22(a).

George, C. J., Mosk, J., Baxter, J., Werdegar, J., Chin, J., and Brown, J., concurred.