People v. Athar

• Decision Date: 14 July 2005
• Docket Number: No. S119975.,S119975.
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Syed Abieda ATHAR, Defendant and Appellant.

30 Cal.Rptr.3d 570

36 Cal.4th 396

114 P.3d 806

The PEOPLE, Plaintiff and Respondent, v. Syed Abieda ATHAR, Defendant and Appellant.

No. S119975.

Supreme Court of California.

July 14, 2005.

Beatrice C. Tillman, San Diego, under appointment by the Supreme Court, and Chris Truax, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary R. Schons, Assistant Attorney General, Robert M. Foster, Jeffrey J. Koch and Steven T. Oetting, Deputy Attorneys General, for Plaintiff and Respondent.

CHIN, J.

A jury found defendant Syed Abeida Athar guilty of conspiracy to engage in money laundering in violation of the general conspiracy statute, Penal Code section 182, subdivision (a)(1).¹ Defendant was not charged with (or convicted of) money laundering itself under section 186.10, subdivision (a). The trial court sentenced him to a two-year term for the base crime of conspiracy, and imposed a four-year enhancement under section 186.10, subdivision (c)(1)(D).

We granted review to decide whether the trial court may impose an enhancement under section 186.10, subdivision (c), for money laundering when the defendant is not convicted of money laundering under section 186.10, subdivision (a), but is convicted of conspiracy to commit that offense under section 182. Under section 182, subdivision (a), a conspirator is to receive punishment "in the same manner and to the same extent as is provided for the punishment of" the target felony. Applying this provision, we conclude that the enhancement provisions of section 186.10, subdivision (c), do apply when the defendant has been convicted of conspiracy to commit money laundering but not of money laundering itself.

FACTS AND PROCEDURAL HISTORY

We summarize the relevant facts and procedural history as presented by the Court of Appeal.

Beginning in July 1994, defendant and some friends began to sell counterfeit Microsoft software. The partners established various fictitious businesses to conceal the unlawful sales and took the profits for themselves. They distributed the profits by depositing them into various bank accounts and transferring them by check, cashier's check, and cash to other accounts. Between August 1994 and September 1996, defendant and his partners engaged in nearly 300 transactions, and over $2,500,000 was eventually transferred.

Since June 1996, Microsoft had been receiving complaints about the counterfeit software and had alerted the San Diego Police Department of the scheme. Based on the information received, police arrested defendant on September 6, 1996. The search following arrest turned up 1,100 to 1,300 units of counterfeit software in defendant's possession.

An indictment was filed in 1999, charging defendant and his partners with conspiracy to engage in money laundering and to manufacture a counterfeit mark. (§§ 182, 350, subd. (d)(3).) The indictment alleged approximately 55 overt acts, some occurring as early as July 1994. The indictment further alleged that "the value of the transaction or transactions exceeds two million five hundred thousand dollars ($2,500,000), in violation of Penal Code section 186.10(c)(1)(D)." The indictment did not charge defendant with money laundering under section 186.10, subdivision (a), although several of his partners were so charged. Defendant was charged, however, with possession for sale of 1,000 or more counterfeit marks in violation of section 350, subdivision (d)(3).

As relevant here, a jury convicted defendant of conspiracy to commit money laundering. (§ 182, subd. (a)(1).) The jury also found that the value of the transactions was in excess of $2,500,000, the statutory minimum required for imposing a four-year enhancement following a conviction for the substantive crime of money laundering. (§ 186.10, subd. (c)(1)(D).) The trial court sentenced defendant to two years for conspiracy and four years for the money laundering enhancement under section 186.10, subdivision (c)(1)(D). The court then stayed the entire sentence and imposed five years' probation conditioned on one year in the county jail and various fines and restitution.

The Court of Appeal affirmed the judgment. Defendant petitioned for review, raising certain issues, but failed to question whether he should have received the money laundering enhancement because he was not charged or convicted of money laundering. We granted and transferred the case so the Court of Appeal could consider that issue.

A majority of the Court of Appeal held that money laundering enhancements apply to the charge of conspiracy to commit money laundering. We granted defendant's petition for review limited to the money laundering enhancement issue.

DISCUSSION

Section 182, subdivision (a), provides that conspiracy to commit felonies other than those specifically identified "shall be punishable in the same manner and to the same extent as is provided for the punishment of that felony." (§ 182, subd. (a).) Section 186.10, subdivision (c)(1), provides possible enhancements for money laundering, stating, among other things, that "Any person who is punished under subdivision (a) by imprisonment in the state prison shall also be subject to an additional term of imprisonment in the state prison as follows: [¶] ... [¶] (D) If the value of the transaction or transactions exceeds two million five hundred thousand dollars ($2,500,000), the court ... shall impose an additional term of imprisonment of four years." (§ 186.10, subd. (c)(1).)² The Court of Appeal majority upheld defendant's conspiracy conviction and application of the money laundering enhancement based on the fact that conspirators under section 182, subdivision (a), must be punished "in the same manner and to the same extent" as those convicted of the "target felony," i.e., money laundering.

The Court of Appeal, relying on the plain meaning rule, concluded that section 186.10, subdivision (c), requires the enhancement because it does not specifically prohibit it. (See People v. Gardeley (1997) 14 Cal.4th 605, 621, 59 Cal.Rptr.2d 356, 927 P.2d 713 (Gardeley) [when statutory language is clear and unambiguous, and not susceptible of more than one meaning, courts should not engage in statutory construction].) The court observed that "[h]ad the Legislature intended to apply the money laundering enhancements to only those persons convicted of the substantive offense of money laundering, it would have so provided in subdivision (c) of section 186.10." Therefore, the court reasoned, because the Legislature did not exclude conspiracy actions from the enhancement provisions, the enhancement here was mandatory.

The People agree, asserting that the requirement of the conspiracy statute that one convicted of conspiracy must be punished "in the same manner and to the same extent" as provided for the punishment of the target offense, means that defendant is deemed punished under section 186.10. As the People observe, by its terms, section 186.10, subdivision (c), does not require a court to convict defendant of the target offense, but instead that he be punished under section 186.10, subdivision (a). Relying on People v. Kramer (2002) 29 Cal.4th 720, 128 Cal.Rptr.2d 407, 59 P.3d 738 (Kramer), the People add that section 182's requirement that a defendant be punished for, as opposed to convicted of, the felony with the "greater maximum term" (§ 182, subd. (a)) demonstrates a legislative intent to incorporate enhancements into any conspiracy conviction.

Justice McDonald's dissent argued that the mere fact that section 182 refers to the target crime to determine the punishment for conspiracy does not mean one is deemed punished for the target crime. "[Defendant] did not commit the crime of money laundering ... he committed the crime of conspiracy. Therefore, he was punished under the conspiracy statute for committing the crime of conspiracy; he was not punished under the money laundering statute because he did not commit the crime of money laundering."

We agree with the Court of Appeal majority and the People. It is true, as defendant contends, that conspiracy is separate and distinct from the substantive crime that is its object. But we cannot ignore the fact that the punishment for a conspiracy to commit the felony of money laundering is the same as that for money laundering. (§ 182, subd. (a).)

Kramer, supra, 29 Cal.4th 720, 128 Cal. Rptr.2d 407, 59 P.3d 738, supports the People's contention. In Kramer, we applied amended section 654 to decide the proper punishment in a case in which the defendant fired a gun at a moving car containing two occupants, and was convicted of both discharging a firearm at an occupied vehicle (§ 246), and assault with a firearm (§ 245, subd. (a)(2)). (Kramer, supra, 29 Cal.4th at p. 722, 128 Cal.Rptr.2d 407, 59 P.3d 738.) Amended section 654 provides that when an act or omission is punishable in different ways by different provisions of law, it "shall be punished under the provision that provides for the longest potential term of imprisonment...." (§ 654, subd. (a).) Kramer observed that the punishment for violating section 246 is three, five, or seven years, while the punishment for violating section 245, subdivision (a)(2), is two, three, or four years. (Kramer, supra, 29 Cal.4th at p. 722, 128 Cal.Rptr.2d 407, 59 P.3d 738.)

Viewed in isolation, section 246 provided for the longest potential term of imprisonment and, under section 654, would be the applicable statute for sentencing defendant. (Kramer, supra, 29 Cal.4th at p. 722, 128 Cal.Rptr.2d 407, 59 P.3d 738.) However, because the section 245, subdivision (a)(2), count was eligible for the firearm-use enhancement of section 12022.5, subdivision (a), while the section 246 count was not, we held that the assault charge under section 245, subdivision (a)(2), provided for a longer potential term of imprisonment as long as the firearm-use...