People v. Green

• Decision Date: 11 February 1991
• Docket Number: No. A047437,A047437
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Paul GREEN, Defendant and Appellant.

Page 140

278 Cal.Rptr. 140

227 Cal.App.3d 692

PEOPLE of the State of California, Plaintiff and Respondent, v. Paul GREEN, Defendant and Appellant.

No. A047437.

Court of Appeal, First District, Division 1, California.

Feb. 11, 1991.

[227 Cal.App.3d 694] Scott F. Kauffman, San Francisco, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Ronald E. Niver, Supv. Deputy Atty. Gen., David H. Rose, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

STEIN, Associate Justice.

Paul Green pled guilty to the possession of cocaine for sale (Health & Saf.Code, § 11351), theft of a vehicle (Veh.Code, § 10851), assault with a firearm (Pen.Code, § 245, subd. (a)(2)) and participation in a criminal street gang (Pen.Code, § 186.22, subd. (a)). He was sentenced to two years in state prison (a two-year term was imposed for conviction of the cocaine charge and a concurrent two-year term was imposed for each of the remaining charges).

On appeal, Green attacks only his conviction of the charge of participation in a criminal street gang, claiming the statute is unconstitutionally vague and overbroad.

DISCUSSION

Penal Code section 186.22, subdivision (a), of which Green was convicted, 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 the county jail for a period not to exceed one year, or by imprisonment in the state prison for one, two, or three years."

Green argues first that specific provisions of section 186.22 are so vague as to fail to provide notice of the conduct it intends to proscribe, permitting arbitrary enforcement. Second, he argues that the vagueness of the statute's provisions permit it to be construed to cover protected conduct, i.e., that its uncertainty renders it unconstitutionally overbroad. We conclude that the statute's terms are adequately defined, both by the statute itself and by reference to relevant common law precedent. Finding the terms of the statute to be subject to reasonable definition, we further find that, by those definitions, the statute does not endanger protected conduct.

Before addressing Green's specific complaints as to the statute's constitutionality, however, we must address a threshold issue raised by the Attorney General.

I. Green's Plea of Guilty Does not Preclude Him From Mounting a Facial Challenge to Section 186.22

By pleading guilty to a violation of Penal Code section 186.22, subdivision (a), Green necessarily admitted every element of the offense charged. (In re Hawley (1967) 67 Cal.2d 824, 828, 63 Cal.Rptr. 831, 433 P.2d 919; U.S. v. Broce (1989) 488 U.S. 563, 109 S.Ct. 757, 759, 102 L.Ed.2d 927.) It follows that if section 186.22 is constitutional as to any conduct proscribed by the statute, Green's plea of guilty admits that conduct. The general rule is that "one will not be heard to attack a statute on grounds that are not shown to be applicable to himself." (In re Cregler (1961) 56 Cal.2d 308, 313, 14 Cal.Rptr. 289, 363 P.2d 305: where a statute prohibited loitering in specified areas by a "pickpocket, thief, burglar or confidence operator," a person arrested as a thief was not entitled to argue that the terms "pickpocket" or "confidence operator" are unconstitutionally vague.) Thus, "One to whose conduct a statute clearly applies may not successfully challenge it for vagueness." (Parker v. Levy (1974) 417 U.S. 733, 756, 94 S.Ct. 2547, 2562, 41 L.Ed.2d 439: defendant who was court martialed for making statements to which statute clearly applied lacked standing to challenge statute on grounds that it was unclear whether it applied to other conduct.) The Attorney General argues that it follows that Green should lack standing to challenge section 186.22 unless there is no conduct to which the statute might be applied constitutionally.

The Attorney General's argument, however, presumes that Green's attack on section 186.22 is limited to some, but not all, of the conduct covered by the statute. If the Attorney General is correct in this presumption, the argument has merit. For example, as will be discussed, section 186.22 lists a number of offenses which it deems evidence of a "pattern of criminal conduct." By pleading guilty, Green necessarily admitted that he committed those offenses which were described with sufficient particularity, and thus would lack standing to attack the statute on the grounds that the descriptions of other offenses are vague and overbroad.

Green, however, attacks the basic provisions of section 186.22 which, if found vague, would invalidate the entire statute. His plea therefore does not admit anything which would cause him to lack standing to make such an attack.

An argument similar to that made here by the Attorney General was rejected by the majority opinion in Kolender v. Lawson (1983) 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903. In that case Lawson had been arrested for violating California Penal Code section 647, subdivision (e), making it a misdemeanor for a person to loiter or wander on the streets and fail to provide credible and reliable identification or otherwise account for his or her presence to a police officer. Lawson, however, did not challenge the statute on the basis of its application to him; rather, he sought to obtain a declaratory judgment that it was vague and overbroad in general. The majority agreed, finding that the statute's failure to define "credible and reliable" vested "virtually complete discretion in the hands of the police to determine whether the suspect has satisfied the statute and must be permitted to go on his way in the absence of probable cause to arrest." (P. 358, 103 S.Ct. p. 1858.)

"In his dissent, ¹ JUSTICE WHITE claims that '[t]he upshot of our cases ... is As in Kolender, Green's attack combines notions of vagueness and of overbreadth. Kolender holds that a defendant is entitled to make a facial challenge if he argues that the statute improperly prohibits a substantial amount of constitutionally protected conduct, whether or not its application to his own conduct may be constitutional.

that whether or not a statute purports to regulate constitutionally protected conduct, it should not be held unconstitutionally vague on its face unless it is vague in all of its possible applications.' Post, at 370 [103 S.Ct. at 1865]. The description of our holdings is inaccurate in several respects. First, it neglects the fact that we permit a facial challenge if a law reaches 'a substantial amount of constitutionally protected conduct.' [Citation.] Second, where a statute imposes criminal penalties, the standard of certainty is higher. [Citation.] This concern has, at times, led us to invalidate a criminal statute on its face even when it could conceivably have had some valid application. [Citations.] The dissent concedes that 'the overbreadth doctrine permits facial challenge of a law that reaches a substantial amount of conduct protected by the First Amendment....' Post, at 371 [103 S.Ct. at 1865]. However, in the dissent's view, one may not 'confuse vagueness and overbreadth by attacking the enactment as being vague as applied to conduct other than his own.' Post, at 370 [103 S.Ct. at 1865]. But we have traditionally viewed vagueness and overbreadth as logically related and similar doctrines." (Kolender v. Lawson, supra, 461 U.S. at pp. 358-359, fn. 8, 103 S.Ct. at p. 1859, fn. 8.)

II. Penal Code Section 186.22 is not Unconstitutionally Vague

The legal principles relevant to a claim of vagueness were explained by the court in People v. Superior Court (Caswell) (1988) 46 Cal.3d 381, 389-390, 250 Cal.Rptr. 515, 758 P.2d 1046: "That no person shall be deprived of life, liberty or property without due process of law is, of course, a cornerstone of our jurisprudence. (U.S. Const., Amends. V, XIV; Cal. Const., art. I, § 7.) 'The requirement of a reasonable degree of certainty in legislation, especially in the criminal law, is a well established element of due process of law.' [Citation.] To withstand a facial vagueness challenge under the due process clause, a statute must satisfy two basic requirements.

"First, a statute must be sufficiently definite to provide adequate notice of the conduct proscribed. '[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. [Citations.]' [Citations.] ' "[B]ecause we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning." ' [Citations.]

"Second, a statute must provide sufficiently definite guidelines for the police in order to prevent arbitrary and discriminatory enforcement. 'A vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. [Citation.] Where the legislature fails to provide such minimal guidelines, a criminal statute may permit "a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections." ' [Citations.]"

As to overbreadth, it is held that "a governmental purpose to control or prevent activities constitutionally subject to state That section 186.22, subdivision (a)'s terms are not perfectly defined, or that they may not be defined precisely, does not invalidate the statute. "[R]...