People v. Lopez

• Decision Date: 06 January 2005
• Docket Number: No. S119294.,S119294.
• Citation: People v. Lopez, 22 Cal.Rptr.3d 869, 34 Cal.4th 1002, 103 P.3d 270 (Cal. 2005)
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jesus LOPEZ, Defendant and Appellant.

22 Cal.Rptr.3d 869

34 Cal.4th 1002

103 P.3d 270

The PEOPLE, Plaintiff and Respondent, v. Jesus LOPEZ, Defendant and Appellant.

No. S119294.

Supreme Court of California.

January 6, 2005.

Joseph Shipp, under appointment by the Supreme Court, Oakland, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Donald E. De Nicola, Margaret E. Maxwell and Jeffrey B. Kahan, Deputy Attorneys General, for Plaintiff and Respondent.

David La Bahn; Steve Cooley, District Attorney (Los Angeles), Patrick D. Moran and Brent Riggs, Deputy District Attorneys, for California District Attorneys Association as Amicus Curiae on behalf of Plaintiff and Respondent.

BAXTER, J.

Penal Code section 186.22, subdivision (b) establishes alternative methods for punishing felons whose crimes were committed for the benefit of a criminal street gang. Section 186.22, subdivision (b)(1)(C) (section 186.22(b)(1)(C)) imposes a 10-year enhancement when such a defendant commits a violent felony. Section 186.22(b)(1)(C) does not apply, however, where the violent felony is "punishable by imprisonment in the state prison for life." (Pen.Code, § 186.22, subd. (b)(5).) Instead, section 186.22, subdivision (b)(5) (section 186.22(b)(5)) applies and imposes a minimum term of 15 years before the defendant may be considered for parole.

In this case, we must decide whether a gang-related first degree murder, which is punishable by a term of 25 years to life, carries an additional 10-year enhancement under Penal Code section 186.22(b)(1)(C) or, alternatively, a 15-year minimum parole eligibility term under section 186.22(b)(5). For the reasons stated below, we conclude that first degree murder is a violent felony that is punishable by imprisonment in the state prison for life and therefore is not subject to a 10-year enhancement under section 186.22(b)(1)(C).

BACKGROUND

On April 25, 2000, defendant shot and killed a rival gang member outside a Pizza Hut at the intersection of Florence and Figueroa in Los Angeles. A jury convicted defendant of first degree murder (Pen. Code, § 187)¹ and found that defendant had committed the murder for the benefit of a criminal street gang (§ 186.22, subd. (b)) and that he had personally used and intentionally discharged a firearm to commit the murder (§§ 12022.5, subd. (a)(1), 12022.53, subds. (b)-(d)). The trial court sentenced defendant to 25 years to life in state prison for the murder and 25 years to life for the firearm use, both consecutive to a 10-year criminal street gang enhancement under section 186.22(b)(1)(C).

The Court of Appeal recalculated defendant's presentence custody credits but otherwise affirmed the judgment, including the 10-year enhancement under section 186.22(b)(1)(C). Because the Courts of Appeal have divided over the application of the 10-year enhancement in murder cases (see People v. Montes (2003) 31 Cal.4th 350, 361, fn. 14, 2 Cal.Rptr.3d 621, 73 P.3d 489), we granted review of the following issue: Is a defendant who is convicted of first degree murder with a finding that the crime was committed for the benefit of a criminal street gang within the meaning of Penal Code section 186.22 subject to an enhancement of 10 years under section 186.22(b)(1)(C) or, alternatively, a minimum parole eligibility term of 15 years under section 186.22(b)(5)?

DISCUSSION

Section 186.22 was enacted in 1988 as part of the California Street Terrorism Enforcement and Prevention Act (STEP Act), section 186.20 et seq. As originally enacted, former section 186.22, subdivision (b) provided that "[a]ny person who is convicted of a felony ... which is committed for the benefit of ... any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall be punished in the following manner: [¶] ... [¶] (2) Except as provided in paragraph (3), any person who violates this subdivision in the commission of a felony shall ... in addition and consecutive to the punishment prescribed for the felony ... be punished by an additional term of one, two, or three years at the court's discretion.... [¶] (3) Any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life, shall not be paroled until a minimum of 15 calendar years have been served." (Stats. 1988, ch. 1256, § 1, p. 4180.)

Over the years, the statute has been amended and reenacted, most significantly on March 7, 2000, when California voters passed Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, which, among other things, increased the penalties in former section 186.22, subdivision (b)(2) and added a new exception to that provision's opening clause. (Ballot Pamp., Primary Elec. (Mar. 7, 2000) text of Prop. 21, § 4, pp. 119-120 (Ballot Pamphlet).) The provisions quoted above were renumbered but otherwise experienced no substantive change. After subsequent nonsubstantive changes, section 186.22, subdivision (b)(1) now provides: "Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of ... any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony ... be punished as follows: [¶] ... [¶] (C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years." Section 186.22, former subdivision (b)(3) was renumbered as subdivision (b)(5) and now provides: "Except as provided in paragraph (4), any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life, shall not be paroled until a minimum of 15 calendar years have been served."

The question presented here is whether a first degree murder committed for the benefit of a gang is subject to the 10-year enhancement in section 186.22(b)(1)(C) or whether such a murder falls within that subdivision's excepting clause and is governed instead by the 15-year minimum parole eligibility term in section 186.22(b)(5). In interpreting a voter initiative, we apply the same principles that govern our construction of a statute. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900, 135 Cal.Rptr.2d 30, 69 P.3d 951.) We turn first to the statutory language, giving the words their ordinary meaning. (Id. at p. 901, 135 Cal.Rptr.2d 30, 69 P.3d 951.) If the statutory language is not ambiguous, then the plain meaning of the language governs. (People v. Montes, supra, 31 Cal.4th at p. 356, 2 Cal.Rptr.3d 621, 73 P.3d 489.) If, however, the statutory language lacks clarity, we may resort to extrinsic sources, including the analyses and arguments contained in the official ballot pamphlet, and the ostensible objects to be achieved. (Ibid.; Robert L., supra, 30 Cal.4th at p. 901, 135 Cal.Rptr.2d 30, 69 P.3d 951.)

Defendant contends that the statutory language is plain and its meaning unmistakable. He begins with section 186.22(b)(5), which applies when the felony is "punishable by imprisonment in the state prison for life." In his view, first degree murder, which is punishable by "imprisonment in the state prison for a term of 25 years to life" (§ 190, subd. (a)), is such an offense. In support, he cites People v. Johnson (2003) 109 Cal.App.4th 1230, 1238, 135 Cal.Rptr.2d 848, People v. Harper (2003) 109 Cal.App.4th 520, 525, 135 Cal.Rptr.2d 120, and People v. Ortiz (1997) 57 Cal.App.4th 480, 485-486, 67 Cal. Rptr.2d 126, all of which hold the statutory language is plain and unambiguous and all of which refuse to impose the 10-year gang enhancement for the offense of murder.

The People, on the other hand, contend that the phrase "punishable by imprisonment ... for life" in section 186.22(b)(5) is ambiguous in that it could apply to all life terms (including terms of years to life), as defendant contends, or merely "straight" life terms, which require only a minimum of seven years of incarceration before a defendant becomes eligible for parole (§ 3046). The Attorney General claims that the statutory context, history, and practical consequences of defendant's construction compel a conclusion that section 186.22(b)(5) applies only to straight life terms and therefore does not apply to first or second degree murder. Amicus curiae California District Attorneys Association (CDAA) concedes that section 186.22(b)(5) could apply to a term of years to life, but only as long as the minimum term is less than 15 years, and therefore does not apply to first or second degree murder.

In our view, defendant has the better of the argument. In People v. Yates (1983) 34 Cal.3d 644, 194 Cal.Rptr. 765, 669 P.2d 1, we construed similar language in Penal Code former section 1070, subdivision (a), which then provided that "`[i]f the offense charged be punishable with death, or with imprisonment in the state prison for life, the defendant is entitled to 26 and the state to 26 peremptory challenges.'" (Yates, supra, 34 Cal.3d at p. 646,194 Cal.Rptr. 765,669 P.2d 1.) We held that "`punishable ... with imprisonment in the state prison for life'" in section 1070 included both a straight life term (as in section 3046) as well as a term of years to life that was at least equally severe. (Yates, supra, 34 Cal.3d at p. 647,194 Cal.Rptr. 765,669 P.2d 1; see also People v. Smith (1984) 35 Cal.3d 798, 808-809, 201 Cal.Rptr. 311, 678 P.2d 886.) Virtually identical language — i.e., "punishable by imprisonment in the state prison for life" — appears in section 186.22(b)(5). "`It is a well-recognized rule of construction that after the courts have construed the meaning of any particular word, or expression, and the legislature subsequently undertakes to use...