People v. And

• Decision Date: 18 July 2013
• Docket Number: No. S202790.,S202790.
• Citation: 57 Cal.4th 250,303 P.3d 379,159 Cal.Rptr.3d 70
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Corey Ray JOHNSON, Defendant and Appellant. The People, Plaintiff and Respondent, v. Joseph Kevin Dixon, Defendant and Appellant. The People, Plaintiff and Respondent, v. David Lee, Jr., Defendant and Appellant.

57 Cal.4th 250

303 P.3d 379

159 Cal.Rptr.3d 70

The PEOPLE, Plaintiff and Respondent,

v.Corey Ray JOHNSON, Defendant and Appellant.

The People, Plaintiff and Respondent,

v.Joseph Kevin Dixon, Defendant and Appellant.

The People, Plaintiff and Respondent,

v.David Lee, Jr., Defendant and Appellant.

No. S202790.

Supreme Court of California

July 18, 2013.

See 2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Public Peace and Welfare, § 36.

Susan D. Shors, San Francisco, 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, Pacific Palisades, 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.

CORRIGAN, J.

We granted review to decide whether one may conspire to actively participate in a criminal street gang.¹ 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.

I. BACKGROUND

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,² as well as various enhancements. ³ 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 additionalterms 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 murder. We granted the Attorney General's petition for review.

II. DISCUSSION

A. The Law of Conspiracy

Section 182 prohibits a conspiracy by two or more people to “commit any crime.” (§ 182, subd. (a)(1).) “A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act ‘by one or more of the parties to such agreement’ in furtherance of the conspiracy.” ( People v. Morante (1999) 20 Cal.4th 403, 416, 84 Cal.Rptr.2d 665, 975 P.2d 1071( Morante );§ 184; see also People v. Homick (2012) 55 Cal.4th 816, 870, 150 Cal.Rptr.3d 1, 289 P.3d 791( Homick ).) “[T]he law of attempt and conspiracy covers inchoate crimes and allows intervention before” the underlying crime has been completed. ( People v. Perez (2005) 35 Cal.4th 1219, 1232, 29 Cal.Rptr.3d 423, 113 P.3d 100.)

Criminal activity exists along a continuum. At its conclusion is the commission of a completed crime, like murder. The principle of attempt recognizes that some measure of criminal culpability may attach before a defendant actually completes the intended crime. Thus, a person who tries to commit a crime but who fails, or is foiled, may still be convicted of an attempt to commit that crime. Yet, attempt still involves both mens rea and actus reus. “An attempt to commit a crime consists of ... a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (§ 21a.) To ensure that attempt principles do not punish a guilty mental state alone, an act toward the completion of the crime is required before an attempt will be recognized. “When a defendant acts with the requisite specific intent, that is, with the intent to engage in the conduct and/or bring about the consequences proscribed by the attempted crime [citation], and performs an act that ‘go[es] beyond mere preparation ... and ... show[s] that the perpetrator is putting his or her plan into action’ [citation], the defendant may be convicted of criminal attempt.” ( People v. Toledo (2001) 26 Cal.4th 221, 230, 109 Cal.Rptr.2d 315, 26 P.3d 1051, fn. omitted, quoting People v. Kipp (1998) 18 Cal.4th 349, 376, 75 Cal.Rptr.2d 716, 956 P.2d 1169.) For example, if a person decides to commit murder but does nothing more, he has committed no crime. If he buys a gun and plans the shooting, but does no more, he will not be guilty of attempt. But if he goes beyond preparation and planning and does an act sufficiently close to completing the crime, like rushing up to his intended victim with the gun drawn, that act may constitute an attempt to commit murder.⁴ Conspiracy law attaches culpability at an earlier point along the continuum than attempt. “Conspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act.” ( Iannelli v. United States (1975) 420 U.S. 770, 777, 95 S.Ct. 1284, 43 L.Ed.2d 616( Iannelli );Homick, supra, 55 Cal.4th at p. 870, 150 Cal.Rptr.3d 1, 289 P.3d 791;People v. Marsh (1962) 58 Cal.2d 732, 743, 26 Cal.Rptr. 300, 376 P.2d 300.) Conspiracy separately punishes not the completed crime, or even its attempt. The crime of conspiracy punishes the agreement itself and “does not require the commission of the substantive offense that is the object of the conspiracy.” ( People v. Swain (1996) 12 Cal.4th 593, 599, 49 Cal.Rptr.2d 390, 909 P.2d 994.) “Traditionally the law has considered conspiracy and the completed substantive offense to be separate crimes.” ( Iannelli, supra, 420 U.S. at p. 777, 95 S.Ct. 1284.)

Under our statute, an agreement to commit a crime, by itself, does not complete the crime of conspiracy. The commission of an overt act in furtherance of the agreement is also required. “No agreement amounts to a conspiracy, unless some act, beside such agreement, be done within this state to effect the object thereof, by one or more of the parties to such agreement....” (§ 184.) “ ‘[A]n overt act is an outward act done in pursuance of the crime and in manifestation of an intent or design, looking toward the accomplishment of the crime.’ [Citations.]” ( People v. Zamora (1976) 18 Cal.3d 538, 549, fn. 8, 134 Cal.Rptr. 784, 557 P.2d 75.) One purpose of the overt act requirement “is ‘to show that an indictable conspiracy exists' because ‘evil thoughts alone cannot constitute a criminal offense.’ [Citations.]” ( People v. Russo (2001) 25 Cal.4th 1124, 1131, 108 Cal.Rptr.2d 436, 25 P.3d 641.) The overt act...