People v. Briceno

• Decision Date: 04 November 2004
• Docket Number: No. S117641.,S117641.
• Citation: 99 P.3d 1007,20 Cal.Rptr.3d 418,34 Cal.4th 451
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Alberto Francisco BRICENO et al., Defendants and Appellants.

20 Cal.Rptr.3d 418

34 Cal.4th 451

99 P.3d 1007

The PEOPLE, Plaintiff and Respondent, v. Alberto Francisco BRICENO et al., Defendants and Appellants.

No. S117641.

Supreme Court of California.

November 4, 2004.

Leslie Conrad, under appointment by the Supreme Court, Pacific Palisades, for Defendant and Appellant Alberto Francisco Briceno.

Frederick L. McBride, under appointment by the Court of Appeal, Santa Ana, for Defendant and Appellant Evaristo Landin.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil P. Gonzalez and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.

Tony Rackauckas, District Attorney (Orange) and Brian N. Gurwitz, Deputy District Attorney, as Amici Curiae on behalf of Plaintiff and Respondent.

MORENO, J.

At the March 7, 2000 Primary Election, the California electorate passed Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998. Proposition 21 made significant changes in the law concerning gang-related crime. In this case, we decide whether Penal Code¹ section 1192.7, subdivision (c)(28) (section 1192.7(c)(28)), which adds to the list of serious felonies "any felony offense, which would also constitute a felony violation of Section 186.22," applies only to the substantive offense of active participation in a criminal street gang defined in section 186.22, subdivision (a) (section 186.22(a)), or whether it also applies to any felony offense committed for the benefit of a criminal street gang, as defined in the section 186.22, subdivision (b)(1) (section 186.22(b)(1)) gang sentence enhancement.

For the reasons stated below, we conclude that the definition of "serious felony" in section 1192.7(c)(28) also includes "any felony offense" that was committed for the benefit of a criminal street gang within the meaning of section 186.22(b)(1). We reverse the judgment only insofar as the Court of Appeal reversed the trial court's finding that defendant had suffered a prior conviction for a serious felony and remanded the matter for resentencing. In all other respects, we affirm the judgment.

PROCEEDINGS BELOW

On Christmas Day, 2000, defendants Alberto Briceno and Evaristo Landin went on a crime spree in Orange County, robbing four people at gunpoint in four separate incidents. Defendant Briceno² was convicted of four counts of robbery (§ 211), and the jury found true the allegation that the robberies were committed for the benefit of a criminal street gang under section 186.22(b)(1).³

In a bifurcated trial held after the jury had reached its verdicts, the trial court found true allegations that defendant had suffered two prior convictions of serious felonies within the meaning of the Three Strikes law⁴ and section 667, subdivision (a)(1).⁵ One prior conviction—for shooting at an occupied vehicle in violation of section 246 — was not challenged on appeal and is not at issue here. The other prior "conviction" was, in actuality, two convictions that occurred on the same day but were jointly alleged as one prior serious felony — a conviction for unlawful possession of a firearm by a felon for the benefit of a criminal street gang (§§ 12021, subd. (a), 186.22(b)(1)), and a conviction for carrying a concealed firearm while an active participant in, and for the benefit of, a criminal street gang (§§ 12025, subd. (b)(3), 186.22(b)(1)). Defendant received an indeterminate sentence of 27 years to life, consecutive to a determinate term of 23 years and four months.

The Court of Appeal reversed the trial court's finding that defendant's prior convictions of section 12021, subdivision (a), and section 12025, subdivision (b)(3), constituted a prior conviction of a serious felony within the meaning of the Three Strikes law and section 667, subdivision (a)(1). Noting that section 12021, subdivision (a) and section 12025, subdivision (b)(3) are not listed as serious felonies in section 1192.7, subdivision (c), the Court of Appeal rejected the Attorney General's argument that the conviction was a serious felony because the sentence had been enhanced under section 186.22(b)(1), which applies to crimes committed for the benefit of a criminal street gang.

The Attorney General had relied upon section 1192.7(c)(28), which adds to the list of serious felonies "any felony offense, which would also constitute a felony violation of Section 186.22." The Court of Appeal ruled that a conviction for a crime that is not listed as a serious felony that includes a gang enhancement under section 186.22(b)(1) is not a strike "[b]ecause a criminal street gang enhancement ... cannot be used to transform an ... offense [not on the section 1192.7, subdivision (c) serious felony list] into a `serious' felony." Equating the term "felony violation" with "felony offense," the Court of Appeal reasoned that the section 1192.7(c)(28) phrase, "any felony offense, which would also constitute a felony violation of Section 186.22" (italics added), is limited to the one substantive felony offense contained in section 186.22, active participation in a criminal street gang in violation of section 186.22(a).⁶ Section 186.22(b)(1), because it adds an additional term of imprisonment to the base term of the underlying felony, is a sentence enhancement and thus is not a "felony violation" within the meaning of section 1192.7(c)(28). We granted the Attorney's General petition for review.

DISCUSSION

Section 1192.7, subdivision (c) enumerates those felony violations that constitute serious felonies under California law. Where a defendant has been convicted of a serious felony, reoffending may result in severe consequences: certain prior serious felony convictions are strikes under the Three Strikes law (§§ 667, subds.(d)(1), (h), 667.1, 1170.12, subd. (b)(1), 1170.125; Prop. 184, § 2), and all prior serious felony convictions subject a defendant to an additional five-year sentence enhancement if the current offense is a serious felony. (§ 667, subd. (a)(1) & (4).)

The electorate, in passing Proposition 21, added several new felony violations to the list of serious felonies in section 1192.7, subdivision (c), including section 1192.7(c)(28), which makes "any felony offense, which would also constitute a felony violation of Section 186.22," a serious felony. As noted, the Court of Appeal held that this language limited the reach of section 1192.7(c)(28) to the substantive felony offense of active participation in a criminal street gang, in violation of section 186.22(a). The Attorney General maintains that section 1192.7(c)(28) includes any felony offense not enumerated in section 1192.7, subdivision (c) where the offense is committed for the benefit of a criminal street gang, within the meaning of the section 186.22(b)(1) gang sentence enhancement.

This is the court's third opportunity to interpret gang-related provisions enacted by Proposition 21. In Robert L. v. Superior Court (2003) 30 Cal.4th 894, 135 Cal. Rptr.2d 30, 69 P.3d 951 (Robert L.), we held that section 186.22, subdivision (d) — an alternate penalty provision that applies to a person convicted of a gang-related "public offense punishable as a felony or a misdemeanor" — applies to all misdemeanors and is not limited to so-called wobblers, which are offenses that are punishable as either a misdemeanor or a felony. In People v. Montes (2003) 31 Cal.4th 350, 2 Cal.Rptr.3d 621, 73 P.3d 489 (Montes), we held that section 186.22, subdivision (b)(5), an alternate penalty provision that applies to any gang-related "felony punishable by imprisonment in the state prison for life," applies only to those offenses in which the underlying felony itself, excluding enhancements, carries a life sentence. Here, we interpret the phrase in section 1192.7(c)(28), "any felony offense, which would also constitute a felony violation of Section 186.22." For the reasons stated below, we conclude that section 1192.7(c)(28) includes within its ambit any felony offense committed for the benefit of a criminal street gang under the section 186.22(b)(1) gang sentence enhancement.

"In interpreting a voter initiative ... we apply the same principles that govern statutory construction. [Citation.] Thus, `we turn first to the language of the statute, giving the words their ordinary meaning.' [Citation.] The statutory language must also be construed in the context of the statute as a whole and the overall statutory scheme [in light of the electorate's intent]. [Citation.] When the language is ambiguous, `we refer to other indicia of the voters' intent, particularly the analyses and arguments contained in the official ballot pamphlet.' [Citation.]" (People v. Rizo (2000) 22 Cal.4th 681, 685, 94 Cal.Rptr.2d 375, 996 P.2d 27.) In other words, "our primary purpose is to ascertain and effectuate the intent of the voters who passed the initiative measure." (In re Littlefield (1993) 5 Cal.4th 122, 130, 19 Cal.Rptr.2d 248, 851 P.2d 42.)

Turning to the language of section 1192.7(c)(28) itself, our first task is to determine whether the phrase, "any felony offense, which would also constitute a felony violation of Section 186.22," has an ordinary meaning to the electorate. At first blush, this language appears susceptible of two interpretations, one narrow and one broader. The term "felony violation" as used in section 1192.7(c)(28) could refer only to substantive felony offenses, as held by the Court of Appeal, in which case section 1192.7(c)(28) would be necessarily limited to the one substantive offense contained in section 186.22 — the section 186.22(a) substantive felony offense of active participation in a criminal street gang.⁷

However, the term "felony violation" could also be read to include sentence enhancements, as the Attorney General argues, in which case section 1192.7(c)(28) would apply to "any felony offense, which would also constitute a felony violation of section 186.22,"...