People v. Robles

• Decision Date: 14 August 2000
• Docket Number: No. S069306.,S069306.
• Citation: 99 Cal.Rptr.2d 120,23 Cal.4th 1106,5 P.3d 176
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Appellant, v. Ricardo Aguirre ROBLES, Defendant and Respondent.

99 Cal.Rptr.2d 120

23 Cal.4th 1106

5 P.3d 176

The PEOPLE, Plaintiff and Appellant, v. Ricardo Aguirre ROBLES, Defendant and Respondent.

No. S069306.

Supreme Court of California.

August 14, 2000.

Gil Garcetti, District Attorney, Brent Riggs and Natasha S. Cooper, Deputy District Attorneys, for Plaintiff and Appellant.

Michael P. Judge, Public Defender, Albert J. Menaster, Terry McQuigg and Paula Montez, Deputy Public Defenders, for Defendant and Respondent.

KENNARD, J.

This is the fifth, and probably not the last, in a series of recent decisions by this court that involve 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 Three of these cases, People v. Gardeley (1996) 14 Cal.4th 605,People v. Loeun (1997) 17 Cal.4th 1, 69 Cal.Rptr.2d 776, 947 P.2d 1313, and People v. Zermeno (1999) 21 Cal.4th 927, 89 Cal.Rptr.2d 863, 986 P.2d 196, concerned subdivision (b)(1) of section 186.22; that subdivision increases the punishment for gang-related felonies. The fourth case, People v. Castenada (2000) 23 Cal.4th 743, 97 Cal.Rptr.2d 906 (Castenada), involved subdivision (a), which defines a particular offense to which only gang members are subject. An element of that offense is that the defendant "actively participates in any criminal street gang." (§ 186.22, subd. (a).) In those four decisions, section 186.22 was directly at issue.

This case indirectly involves subdivision (a)of section 186.22. There is an express reference to that provision in section 12031, subdivision (a)(2)(C), under which defendant was charged. That subdivision elevates from a misdemeanor to a felony the offense of carrying a loaded firearm in public when committed by "an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22, under the Street Terrorism Enforcement and Prevention Act." (§ 12031, subd. (a)(2)(C), italics added.) Our task is to ascertain what the Legislature meant by the quoted phrase.

I

Defendant was charged with carrying a loaded firearm in public in violation of section 12031, subdivision (a)(1). That offense is a misdemeanor. (Id., subd. (a)(2)(G).) But the offense was charged as a felony here because, as we mentioned earlier, the complaint also alleged under section 12031, subdivision (a)(2)(C) that defendant was "an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22." At the preliminary hearing, the prosecution presented this evidence:

Officer Warren Tojong of the Los Angeles Police Department's "Community Resources Against Street Hoodlums" (CRASH) unit was in a marked police car near the intersection of Hyperion Avenue and Sunset Boulevard when he noticed a group of individuals "in gang attire" standing at the corner. Defendant, who was in the group, looked towards the police car and then discarded "a blue metal-like object" in a planter. Officer Tojong detained defendant and retrieved the item, a fully loaded .22-caliber revolver. After his arrest, defendant told Officer Tojong that he was a member of "La Mirada Locos," a local street gang.

Detective Louis Vargas testified that members of La Mirada Locos had committed a series of armed robberies a month before defendant's arrest, and that the previous year two members of the same gang had stabbed a high school student on a bus. Vargas had no reason to believe that defendant knew of these incidents.

Defendant moved to dismiss the felony complaint. He noted that subdivision (a)(2)(C) of section 12031, under which he was charged, required the prosecution to show he fell within the statutory language of being "an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22." The latter provision contains no such definition, however; instead it sets forth the elements of a separate offense for gang members. Thus, defendant argued, the prosecution had to, but did not, present evidence on each element of the gang offense described in section 186.22, subdivision (a). In response, the prosecution contended that it need show only one element of the gang offense defined in that provision, namely, that defendant "actively participates" in a criminal street gang. The magistrate agreed with defendant and reduced the felony charge to a misdemeanor.

The prosecution unsuccessfully moved in superior court to reinstate the felony complaint (§ 871.5). On the prosecution's appeal of that denial order (§ 1238, subd. (a)(9)), the Court of Appeal agreed with the prosecution that section 12031, subdivision (a)(2)(C) requires proof of only one element of the offense described in section 186.22, subdivision (a): that the defendant "actively participates" in a criminal street gang. The Court of Appeal, relying on People v. Green (1991) 227 Cal.App.3d 692, 278 Cal.Rptr. 140, nonetheless concluded that the superior court had properly denied the prosecution's motion to reinstate the felony complaint. In Green, a different Court of Appeal had held that a defendant "actively participates" in a gang within the meaning of section 186.22, subdivision (a) only if the defendant devotes "all, or a substantial part of his time and efforts to the ... gang." (People v. Green, supra, at p. 700, 278 Cal.Rptr. 140.)² Here, the prosecution did not present such evidence at the preliminary hearing. We granted review.

II

Section 12031, subdivision (a)(1) provides: "A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or any public place or on any public street in a prohibited area of unincorporated territory." Generally, the offense is "a misdemeanor, punishable by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that imprisonment and fine." (§ 12031, subd. (a)(2)(G).) But the offense becomes a felony punishable by a state prison term of 16 months, two, or three years (§ 18) when, as here relevant, "the person is an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22, under the Street Terrorism Enforcement and Prevention Act." (§ 12031, subd. (a)(2)(C) (section 12031(a)(2)(C)), italics added.)

Contrary to the express language of section 12031(a)(2)(C), however, subdivision (a) of section 186.22 (section 186.22(a)) does not at all define the statutory phrase "an active participant in a criminal street gang." Rather, section 186.22(a) sets forth the elements of a gang offense that is punishable either as a felony or a misdemeanor: "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." (§ 186.22(a).)

Because section 186.22(a) does not at all define the challenged phrase in section 12031(a)(2)(C), we need to determine what definition the Legislature had in mind when it said in section 12031(a)(2)(C) that the phrase "an active participant in a criminal street gang" was "defined" in section 186.22(a). In construing section 12031(a)(2)(C), "`as with any statute, we strive to ascertain and effectuate the Legislature's intent.'" (Castenada, supra, 23 Cal.4th at p. 746, 97 Cal.Rptr.2d 906; People v. Loeun, supra, 17 Cal.4th 1, 8, 69 Cal.Rptr.2d 776, 947 P.2d 1313.) "Because statutory language `generally provide] the most reliable indicator' of that intent (People v. Gardeley, supra, 14 Cal.4th 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)." (Castenada, supra, at p. 747, 97 Cal.Rptr.2d 906.) If the language contains no ambiguity, we presume the Legislature meant what it said, and the plain meaning of the statute governs. (Ibid.) If, however, the statutory language is susceptible of more than one reasonable construction, we can look to legislative history in aid of ascertaining legislative intent. (Diamond Multimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4th 1036, 1055, 80 Cal.Rptr.2d 828, 968 P.2d 539.)

The language of section 12031(a)(2)(C) is subject to more than one reasonable construction. Its phrase "an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22" might refer to the substantive offense defined in section 186.22(a), as the magistrate here concluded. Or it might refer to just one element of that crime, that the defendant "actively participates in any criminal street gang," as the Court of Appeal here held. Both constructions are plausible. Accordingly, we can consider the legislative history of section 12031(a)(2)(C) to assist us in ascertaining the Legislature's intent.

Section 12031(a)(2)(C) has its origins in Assembly Bill No. 632 (1995-1996 Reg. Sess.). The People point to a comment in a Senate Committee report on that bill as supporting their argument that under section 12031(a)(2)(C) they need prove only one element of the substantive offense defined in section 186.22(a), namely that the defendant "actively participates" in a criminal street gang. The comment in that report states that "other felony penalties may currently apply in some of the situations" covered by the proposed legislation. (Sen. Com. on Crim. Procedure, Rep. on Assem. Bill No. 632 (1995-1996 Reg. Sess.) as amended June 2, 1995, com. 3, p. 8 (hereafter Senate Committee Report).) It goes on to...