People v. Castenada

• Decision Date: 13 July 2000
• Docket Number: No. S069237.,S069237.
• Citation: 23 Cal.4th 743,3 P.3d 278,97 Cal.Rptr.2d 906
• Court: California Supreme Court
• Parties: PEOPLE, Plaintiff and Respondent, v. Juan Carlos CASTENADA, Defendant and Appellant.

97 Cal.Rptr.2d 906

23 Cal.4th 743

3 P.3d 278

PEOPLE, Plaintiff and Respondent, v. Juan Carlos CASTENADA, Defendant and Appellant.

No. S069237.

Supreme Court of California.

July 13, 2000.

Sharon L. Rhodes, under appointment by the Supreme Court, Chula Vista, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Keith I. Motley, Robert M. Foster and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.

KENNARD, J.

For the fourth time in roughly as many years, we construe Penal Code section 186.22, a provision of the California Street Terrorism Enforcement and Prevention Act of 1988, also known as the STEP Act.¹ The three previous decisions, People v. Zermeno (1999) 21 Cal.4th 927, 89 Cal. Rptr.2d 863, 986 P.2d 196,People v. Loeun (1997) 17 Cal.4th 1, 69 Cal.Rptr.2d 776. 947 P.2d 1313, and People v. Gardeley (1996) 14 Cal.4th 605, 59 Cal.Rptr.2d 356, 927 P.2d 713, involved an interpretation by this court of certain phrases in subdivision (b)(1) of section 186.22, which increases the punishment for some gang-related crimes. The case now before us, however, concerns subdivision (a), which states that a violation of this provision is a crime punishable by incarceration either in county jail or in state prison. As relevant here, an element of this offense is that the defendant, in the words of subdivision (a), "actively participates in any criminal street gang."

To prove that a defendant "actively participates" in a gang, must the prosecution show that the defendant held a leadership position in the gang? Or is it sufficient if the evidence establishes that the defendant's involvement with the gang is more than nominal or passive? We conclude the latter.

I

On the evening of October 16, 1995, Juan Venegas and Pimienta Castillo left a Pizza Loca restaurant in Santa Ana and were walking on nearby Sullivan Street when defendant and two companions began to follow them. Defendant pointed a handgun at Venegas and demanded money, while one of his companions made a similar demand of Castillo. Both victims said they had no money. Defendant then took Venegas's watch and tried to pull a gold chain off his neck. When Venegas broke away and screamed for help, defendant and his companions fled. The next day Venegas and Castillo reported the incident to police; both identified defendant from a photographic lineup.

The prosecution charged defendant with robbery, attempted robbery, and active participation in a criminal street gang. It also sought increased penalties, alleging defendant committed the crimes to benefit a criminal street gang. Defendant waived his right to a jury trial. As relevant here, the prosecution presented this testimony:

Prosecution witness Officer Thomas Serafin, an 11-year veteran of the Santa Ana Police Department's gang unit, testified he was familiar with the Goldenwest gang, whose territory included the Pizza Loca restaurant and the block on Sullivan Street where defendant and his companions began to follow victims Venegas and Castillo.

Seven times between August 1994 and October 16, 1995, the date of the crimes here, Santa Ana police officers saw defendant in the presence of known Goldenwest gang members; on three of these occasions they gave him written notice that Goldenwest was a criminal street gang. At those times, defendant bragged to the officers that he "kicked back" with Goldenwest members and "backed [them] up," but he denied having been initiated into the gang. Officer Serafin explained that gang members commonly use the phrase "kick back" to describe their association with or membership in a gang.

Officer Serafin described how street gang members tend to avoid outsiders, whom they see as lacking in commitment to the gang's interests. In Serafin's view, defendant's numerous contacts with Goldenwest gang members, which we described earlier, indicated defendant's knowledge of the activities of the gang, which would not have allowed him to "hang out" with members of the gang as much as he did had he not been a Goldenwest gang member himself. Officer Serafin described the robbery of Venegas as typical of crimes committed by Goldenwest gang members, who see their crimes as a means of putting local residents on notice of the gang's control of the neighborhood.

The trial court convicted defendant of the crimes charged.² On appeal, defendant challenged only his conviction for active participation in a criminal street gang, claiming insufficiency of evidence. The Court of Appeal affirmed the judgment.

II

Subdivision (a) of section 186.22 (hereafter section 186.22(a)) provides: "Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years." (Italics added.) At issue here is the meaning of the italicized phrase "actively participates."

"In construing the relevant provisions of the STEP Act, as with any statute, we strive to ascertain and effectuate the Legislature's intent." (People v. Loeun, supra, 17 Cal.4th 1, 8, 69 Cal.Rptr.2d 776, 947 P.2d 1313; People v. Gardeley, supra, 14 Cal.4th 605, 621, 59 Cal.Rptr.2d 356, 927 P.2d 713.) Because statutory language "generally provide[s] the most reliable indicator" of that intent (People v. Gardeley, supra, at p. 621, 59 Cal.Rptr.2d 356, 927 P.2d 713; Hsu v. Abbara (1995) 9 Cal.4th 863, 871, 39 Cal.Rptr.2d 824, 891 P.2d 804), we turn to the words themselves, giving them their "usual and ordinary meanings" and construing them in context (People v. Loeun, supra, at p. 9, 69 Cal.Rptr.2d 776, 947 P.2d 1313). `"If there is no ambiguity in the language of the statute, "then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs."'" (Ibid.)

The usual and ordinary meaning of "actively" is "being in a state of action; not passive or quiescent" (American Heritage Dict. (3d ed.1992) p. 18), "characterized by action rather than contemplation or speculation" (Webster's 3d New Internat. 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.

III

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 Goldenwest 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, 278 Cal.Rptr. 140, 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 looked to the concept of "personal guilt," as articulated in the high court's decision in Scales v. United States (1961) 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782 (Scales ). Scales

rejected the defendant's due process challenge to the membership clause of the Smith Act, a federal law that prohibited knowingly holding membership in an organization advocating the violent overthrow of the United States government. The court explained: "In our jurisprudence guilt is personal, and when the imposition of punishment on a status or on conduct can only be justified by reference to the relationship of that status or conduct to other concededly criminal activity (here advocacy of violent overthrow), that relationship must be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under the Due Process Clause of the Fifth Amendment." (Scales, supra, 367 U.S. at pp. 224-225,

81 S.Ct. 1469.) This standard is "duly met," the court said, "when the statute is found to reach only `active' members having also a guilty knowledge and intent, and which therefore prevents a conviction on what otherwise might be regarded as merely an expression of sympathy with the alleged criminal enterprise, unaccompanied by any significant action in its support or any commitment to undertake such action." (Id. at p. 228, 81 S.Ct. 1469.) In the text, the high court cited with approval part of the trial court's...