In Re: Say Sengpadychitch
| Decision Date | 02 August 2001 |
| Citation | 109 Cal.Rptr.2d 851 |
| Court | California Supreme Court |
| Parties | (Cal. 2001) In re SAY SENGPADYCHITH on Habeas Corpus. THE PEOPLE, Plaintiff and Respondent, v. SAY SENGPADYCHITH, Defendant and Appellant. S090076 Filed |
Attorneys for Appellant: David McNeil Morse, under appointment by the Supreme Court, for Defendant and Appellant.
Attorneys for Respondent: Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Ronald E. Niver, Ronald A. Bass, Assistant Attorney General, Catherine A. Rivlin, Mark S. Howell and Michael D. O'Reilley, Deputy Attorneys General, for Plaintiff and Respondent.
*Retired judge of the Santa Clara Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Counsel who argued in Supreme Court (not intended for publication with opinion):
David McNeil Morse 333 Market Street, Suite 2800 San Francisco, CA 94105 (415) 546-5890
Step by step, this court continues its struggle through the thicket of statutory construction issues presented by the California Street Terrorism Enforcement and Prevention Act of 1988, also known as the STEP Act. (Stats. 1988, ch. 1242, 1, pp. 4127-4129; see People v. Robles (2000) 23 Cal.4th 1106; People v. Castenada (2000) 23 Cal.4th 743; People v. Zermeno (1999) 21 Cal.4th 927; People v. Loeun (1997) 17 Cal.4th 1; People v. Gardeley (1996) 14 Cal.4th 605.) Like Gardeley, this case involves Penal Code section 186.22, subdivision (b), a sentence enhancement provision for felonies committed "for the benefit of, at the direction of, or in association with any criminal street gang."1 (Italics added.) The STEP Act defines a criminal street gang as "any ongoing organization, association, or group of three or more persons, whether formal or informal" that has as one of its "primary activities" the commission of one or more statutorily enumerated criminal offenses and through its members engages in a "pattern of criminal gang activity." ( 186.22, subd. (f).) In Gardeley, we construed the phrase "pattern of criminal gang activity," but we also touched on the gang statute's "primary activities" requirement, an issue in this case.
The questions we decide here are these:
1. May the jury consider the circumstances of the charged crimes on the issue of the group's primary activities? We hold that it can.
2. What standard of harmless error governs a trial court's failure to instruct the jury on the requisite primary activities of the group? To answer this question, we look to the United States Supreme Court's recent decision in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). That case holds as a matter of federal constitutional law: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Id. at p. 490, italics added.) Applying Apprendi here, we conclude that, for felonies not punishable by an indeterminate term of imprisonment for life, the gang statute's requirement of a finding by the trier of fact on the group's primary activities is a "fact that increases the penalty" for the charged crime. Because such a finding is necessary to prove the criminal street gang enhancement, it is an element of the enhancement. Therefore, a trial court's failure to instruct the jury on the necessity of such a finding is federal constitutional error. Such error must be evaluated under the high court's test in Chapman v. California (1967) 386 U.S. 18 (Chapman), which asks whether the prosecution has "prove[d] beyond a reasonable doubt that the error . . . did not contribute to" the jury's verdict. (Id. at p. 24.)
The gang enhancement provision does not, however, increase the maximum term of imprisonment for felonies punishable by life imprisonment: A defendant sentenced to life imprisonment for a gang-related crime is statutorily required to serve at least 15 years of that sentence before becoming eligible for parole. Because for this category of offenses the gang statute does not increase the maximum penalty for the crime, the failure to instruct on the primary activities requirement does not violate the federal Constitution. In that situation, therefore, Apprendi does not apply. Instead, it is a matter of state law error, subject to the test this court articulated in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), which asks whether without the error it is "reasonably probable" the trier of fact would have reached a result more favorable to the defendant.2
The prosecution charged defendant with five counts of attempted willful, deliberate, and premeditated murder ( 187, subd. (a), 189, 664, subd. (a)), shooting at an inhabited dwelling house ( 246), and shooting at an unoccupied motor vehicle ( 247, subd. (b)). Each offense carried allegations of various sentence enhancements, including one for committing the offense to benefit a criminal street gang. ( 186.22, subd. (b).)
At trial, the prosecution presented this evidence:
At 5:00 p.m. on May 9, 1996, Soeury "Eve" Pen was in the front yard of her home in San Jose with her friends Joel Dacanay, Pao Av, and Sal Vong, when defendant, who was her former boyfriend and a member of the Triple S gang, telephoned. Eve refused to talk to him. Dacanay, a member of Real Pinoy Brothers (RPB), Triple S's main rival, returned the call and issued a gang challenge, in which Av and Vong joined.
Around 6:45 p.m., defendant and some companions drove to Eve's house in a car and a truck. Standing outside were Av, Vong, and Dacanay. Also with them were Graylone Brown and Travis Cruz. Someone in the car yelled "Who's RPB?" Dacanay answered he was. Defendant then got out of the truck with a handgun and started firing, hitting Cruz in the chest. Defendant also shot through a window and a wall of a nearby house, and he and a companion both shot through the rear window of a van parked on the street.
Detective Marty Hogan of the San Jose Police Department's Violent Crime Unit, which investigates gang crimes, testified to a September 3, 1993, shooting committed by Triple S member Darius Augustin. That crime, like the shootings in this case, was in Detective Hogan's opinion committed to benefit the Triple S gang.
The trial court instructed the jury on the criminal street gang sentence enhancement but failed to explain that, to trigger that provision, the jury had to find that one of Triple S's primary activities was the commission of one or more statutorily enumerated felonies. (See 186.22, subds. (e) & (f).)
The jury convicted defendant of four counts of attempted murder and of shooting at an unoccupied motor vehicle. But it acquitted him of shooting at an inhabited dwelling house, finding him guilty of the lesser included offense of grossly negligent discharge of a firearm ( 246.3). The jury also found true each of the criminal street gang and other sentence-enhancement allegations.
On one of the counts of attempted murder, the trial court sentenced defendant to an indeterminate term of imprisonment for life, consecutive to a determinate term of imprisonment. The court imposed concurrent sentences for defendant's other offenses.
On defendant's appeal, the Court of Appeal reversed and remanded for correction of certain sentencing errors. It also faulted the trial court for not instructing the jury on the gang enhancement's primary activities requirement, but it found the error harmless under Watson, supra, 46 Cal.2d 818, 836. In support, the Court of Appeal cited this court's decision in People v. Wims (1995) 10 Cal.4th 293 (Wims).
After the Court of Appeal issued its decision, the United States Supreme Court decided Apprendi, supra, 530 U.S. 466. Defendant notified the Court of Appeal, asking it to grant rehearing on its own motion to reconsider the instructional issue, but the court lost jurisdiction without acting on that request.
We granted defendant's petition for review.
To trigger the gang statute's sentence enhancement provision ( 186.22, subd. (b)), the trier of fact must find that one of the alleged criminal street gang's primary activities is the commission of one or more of certain crimes listed in the gang statute. In People v. Gardeley, supra, 14 Cal.4th 605 (Gardeley), that requirement was satisfied by the testimony of a police gang expert who expressed his opinion that the primary activities of the group in question were drug dealing and witness intimidation, both statutorily listed crimes. (See Gardeley, supra, 14 Cal.4th at pp. 611, 620.) Neither of these crimes was charged in Gardeley; they reflected past criminal conduct by members of the gang.
A year later, the Court of Appeal in In re Elodio O. (1997) 56 Cal.App.4th 1175, 1181, read Gardeley as allowing only "past activity, not current offenses" as evidence of an alleged gang's primary activities. The next year, the Court of Appeal in People v. Galvan (1998) 68 Cal.App.4th 1135, 1140, disagreed, holding that "either prior conduct or acts committed at the time of the charged offenses can be used to establish the 'primary activities' element of the gang enhancement." As we explain, we agree with Galvan.
The STEP Act defines a criminal street gang as "any ongoing organization, 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 [certain enumerated] criminal...
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