People v. Lopez

• Decision Date: 07 April 2022
• Docket Number: S261747
• Parties: The PEOPLE, Plaintiff and Respondent, v. Pedro LOPEZ, Defendant and Appellant.
• Court: California Supreme Court

12 Cal.5th 957

507 P.3d 925

292 Cal.Rptr.3d 265

The PEOPLE, Plaintiff and Respondent,

v.Pedro LOPEZ, Defendant and Appellant.

S261747

Supreme Court of California.

April 7, 2022

Benjamin Owens, under appointment by the Supreme Court, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Julie A. Hokans, Rachelle A. Newcomb and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion of the Court by Kruger, J.

Defendant Pedro Lopez was convicted of conspiracy to commit home invasion robbery in violation of Penal Code section 182, the general conspiracy statute. The question in this case concerns the appropriate sentence for the crime. Section 182 provides that if two or more persons conspire to commit a felony, "they shall be punishable in the same manner and to the same extent as is provided for the punishment of that felony." ( Pen. Code, § 182, subd. (a).) This means that a person convicted of conspiring to commit home invasion robbery ordinarily faces three, six, or nine years in prison, just as if that person had been found guilty of a completed home invasion robbery. (Id. , § 213, subd. (a)(1)(A).) But the trial court in this case instead sentenced Lopez to an indeterminate term of 15 years to life under Penal Code section 186.22, subdivision (b)(4) ( section 186.22(b)(4) ). That provision prescribes indeterminate life terms for specified felonies, including "home invasion robbery, in violation of subparagraph (A) of paragraph (1) of subdivision (a) of Section 213" ( § 186.22(b)(4)(B) ), when those felonies are found to be gang-related.

We granted review to consider whether Lopez was properly sentenced to an indeterminate life term under section 186.22(b)(4), even though Lopez was convicted of the crime of conspiracy and not completed home invasion robbery. The Court of Appeal answered yes. It understood the conspiracy statute and this court's decision in People v. Athar (2005) 36 Cal.4th 396, 30 Cal.Rptr.3d 570, 114 P.3d 806 ( Athar ) to instruct that in a felony conspiracy case, a trial court ordinarily must apply all sentence enhancements or alternate penalties that would have applied to the completed offense. Because section 186.22(b)(4) does not contain an express statement forbidding an indeterminate life term for a conspiracy conviction, the Court of Appeal concluded Lopez's life sentence was proper.

We reach a different conclusion. Neither the conspiracy statute nor decision in Athar requires an express statement forbidding imposition of sentence enhancements, alternate penalties, or other additional punishment to conspiracy convictions. It is enough if the relevant statutes reflect a discernable intent to reserve the additional punishment for completed crimes. Here, although section 186.22(b)(4) does not say so expressly, the most natural reading of the provision reflects such an intent. Because Lopez was convicted of conspiracy to commit home invasion robbery and not the completed crime, we reverse the judgment of the Court of Appeal and remand Lopez's case for resentencing.

I.

In 2015, law enforcement agencies investigated the activities of Norteño criminal street gang members in Tulare County. As part of the investigation, authorities conducted live surveillance of certain high-ranking gang members and tapped their telephones. On August 24 and 25, agents were watching and listening as several of these gang members planned two back-to-back home invasion robberies to take place in Visalia. Lopez, a member of a Norteño subset in Fresno County, agreed by phone and text message to help recruit for and participate in these robberies.

In preparation, Lopez and other gang members procured cars, weapons, and other equipment; scoped out the locations they intended to target; and planned a coordinated attack. On the night of August 25, the group divided into two cars and set out toward the targeted homes. One gang leader texted another, " ‘ "We in motion. I'll update you soon." ’ " Moments later, the police intervened. Police arrested five individuals, including Lopez.

A jury found Lopez guilty of two counts of conspiracy to commit home invasion robbery¹ ( Pen. Code, §§ 182, subd. (a)(1) [traditional conspiracy], 211 [robbery], 213, subd. (a)(1)(A) [punishment for home invasion robbery]), criminal street gang conspiracy to commit home invasion robbery (id. , § 182.5 [criminal street gang conspiracy]), and attempted home invasion robbery (id. , §§ 664 [attempt], 211, 213, subd. (a)(1)(A)). The jury also found all of these crimes to be gang-related within the meaning of Penal Code section 186.22, subdivision (b)(1) and section 186.22(b)(4).² The court sentenced Lopez to an indeterminate term of 35 years to life for conspiracy to commit home invasion robbery, consecutive to a determinate term of 19 years for attempted home invasion robbery. The sentence for the conspiracy conviction consisted of 15 years to life as a so-called alternate penalty under section 186.22(b)(4)(B), doubled for a prior strike, with an additional five years for a prior serious felony conviction under Penal Code section 667, subdivision (a). All other counts and enhancements were stayed or ordered to be served concurrently.

Lopez appealed. The appeal was partially successful: The Court of Appeal reversed the second count of conspiracy for insufficient evidence. But Lopez was unsuccessful in his efforts to persuade the Court of Appeal that the trial court erred in sentencing him to an indeterminate life term on his conspiracy conviction under section 186.22(b)(4). The Court of Appeal agreed with Lopez that the language in that provision unambiguously applies to only the enumerated offenses, which do not include conspiracy. But it understood this court's decision in Athar , supra , 36 Cal.4th 396, 30 Cal.Rptr.3d 570, 114 P.3d 806 to mean it must "presume any intent to exclude conspiracy liability from the purview of section 186.22, subdivision (b)(4)(B) would be expressly stated therein, which it is not." ( People v. Lopez (2020) 46 Cal.App.5th 505, 529, 260 Cal.Rptr.3d 128.) The court thus upheld Lopez's indeterminate life term on the conspiracy count.

We granted review.

II.

The crime of conspiracy " ‘is an inchoate offense, the essence of which is an agreement to commit an unlawful act.’ " ( People v. Johnson (2013) 57 Cal.4th 250, 258, 159 Cal.Rptr.3d 70, 303 P.3d 379 ( Johnson ).) Much as with other inchoate offenses, the law imposes liability even when agreement never comes to fruition and the agreed-to unlawful act never occurs. To complete the crime of conspiracy, one of the conspirators must commit an overt act in furtherance of the agreement. But because " ‘it is the agreement, not the overt act, which is punishable[,] ... the overt act need not amount to a criminal attempt and it need not be criminal in itself.’ " ( Id . at p. 259, 159 Cal.Rptr.3d 70, 303 P.3d 379.)

When California's general conspiracy statute was enacted in 1872, conspiracy was a misdemeanor punishable by imprisonment in the county jail not exceeding one year, or by a fine not exceeding $1,000, or both. (1872 Pen. Code, § 182.) In 1919, the Legislature amended the statute to provide that, if two or more persons conspire to commit a felony, "they shall be punishable in the same manner and to the same extent as in this code provided for the punishment of the commission of the said felony ...." (Pen. Code, former § 182, as amended by Stats. 1919, ch. 125, § 1, p. 171.) This sanctions clause remains largely unchanged today. ( Pen. Code, § 182, subd. (a) ["punishable in the same manner and to the same extent as is provided for the punishment of that felony"].)³

At the time the Legislature enacted the language, its application was relatively straightforward. But over the course of the following century, the Legislature and voters enacted a number of sentence enhancements and alternative sentencing schemes that have raised new questions about the operation of the general instructions in section 182 for the punishment of conspiracy.

All parties before us agree that under Penal Code section 182, subdivision (a) ( section 182(a) ), a person who conspires to commit a felony is ordinarily subject to the same base term of imprisonment as a person who completes that target offense.

Here, for example, the parties agree that, absent the gang enhancement, Lopez would be subject to imprisonment for a term of three, six, or nine years for his conspiracy conviction — the same term of imprisonment prescribed for home invasion robbery. ( Pen. Code, § 213, subd. (a)(1)(A).)

The question in this case concerns the punishment for conspiracy to commit offenses that, if completed, would be subject to additional or more severe punishment based on additional findings concerning the manner or circumstances in which the crime is committed. Such punishment may be provided in provisions creating sentence enhancements or, as relevant here, alternate penalties. For simplicity's sake, we have sometimes referred to these types of statutes as "special penal provision[s]."⁴ ( Athar , supra , 36 Cal.4th at p. 402, 30 Cal.Rptr.3d 570, 114 P.3d 806.) The question is, in short, "to what extent a court can attach a special penal provision" like section 186.22(b)(4) "to conspiracy rather than to the underlying crime itself." ( Athar , at p. 402, 30 Cal.Rptr.3d 570, 114 P.3d 806.)

We have seen similar questions before. Because our precedent is central to the parties’ dispute here, we describe the opinions in some depth.

In People v. Hernandez (2003) 30 Cal.4th 835, 134 Cal.Rptr.2d 602, 69 P.3d 446 ( Hernandez ), we considered the prescribed punishment for the crime of conspiracy to commit murder. The defendant in that case had been convicted of both murder and conspiracy to commit murder, and the jury had found true a...