Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County Super. Ct. No. 07ZF0002, Richard F. Toohey, Judge. Petition granted in part.
Marri Derby, Alternate Public Defender, County of Orange, Constance Istratescu, Deputy Alternate Public Defender, for Petitioner.
No appearance for Respondent.
Tony Raukauckas, District Attorney, County of Orange, John R. Maxfield, Deputy District Attorney, for Real Party in Interest.
OPINION
SILLS, P. J.
Sixto Moreno petitions us for a writ of mandate/prohibition, to prevent the respondent court from charging him with three counts of contempt, elevated to a felony under the provisions of Penal Code section 186.22, subdivision (d). (See Pen. Code, § 166, subd. (a)(4).) The contempt charges arose from his arrest one night for drinking beer inside his friend’s car parked in that friend’s driveway. These acts allegedly violated the terms of an injunction obtained by the District Attorney of Orange County in July 2006 against the Santa Nita criminal street gang and 134 named members or participants, including Moreno.
Penal Code section 166, subdivision (a)(4) provides that “[w]illful disobedience of the terms as written of any process or court order . . ., lawfully issued by any court, . . .” constitutes a misdemeanor.
Moreno demurred to the indictment containing the contempt counts, and the trial court overruled that demurrer. In response to this ruling, he petitioned us, contending that the injunction is in excess of jurisdiction because the District Attorney has never proven the existence of a public nuisance or that the Santa Nita gang—and he as an individual—has engaged in activities constituting a public nuisance. In this petition, he also argued that the terms of this injunction are unconstitutionally vague and violate his rights of association, speech, privacy and travel. Finally, he contended that charging these contempt counts as felonies simply by alleging they are gang-related comprises “unlawful bootstrapping” because a prerequisite for the issuance of the injunction was that the activities were gang-related.
We issued an alternative writ—as we did in a related case, Lopez v. Superior Court (People), G039025, transferred to us from the California Supreme Court with directions that we issue such an alternative writ, and for which we filed a published opinion today—directing the trial court to either sustain the demurrer, or to show cause why the writ should not issue, but only as to the enhancing allegation under Penal Code section 186.22, subdivision (d). The trial court chose not to act on this directive, and we now address the final issue raised in the petition. Moreno’s constitutional attacks on the injunction are summarily rejected as he has an adequate remedy at law.
We issued a stay of the trial of these charges on August 31, 2007, and subsequently issued the alternative writ on October 18, 2007, directing the respondent court “to vacate and set aside its order overruling petitioner’s demurrer with respect to the sentencing allegation under Penal Code section 186.22, subdivision (d) (see People v. Briceno (2004) 34 Cal.4th 451; People v. Arroyas (2002) 96 Cal.App.4th 1439), and to enter a new order sustaining the demurrer, or to SHOW CAUSE before this court at a time and date to be announced why a writ of prohibition/mandate should not issue . . . .”
The District Attorney of Orange County, as Real Party in Interest, denies Moreno’s contentions. Instead, he argues that the enhancing effect of section 186.22, subdivision (d) is legislatively authorized to meet the governmental purpose of “abat[ing the] Santa Nita criminal street gang conduct in the safety zone.”
Section 186.22, subdivision (d), provides that any “person who is convicted of a public offense punishable as a felony or a misdemeanor, which is committed for the benefit of, at the direction of or in association with, any criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall be punished by imprisonment in the county jail not to exceed one year or in the state prison for one, two, or three years, . . .”
We grant the petition for writ on this single ground.
FACTS
The following facts were taken from police reports “submitted in the matter” and from public documents:
In July 2006, a preliminary injunction issued, enjoining the Santa Nita Criminal Street Gang (SNG) and 137 named members or participants from “engaging in or performing directly or indirectly, any of the following activities” in an area of Santa Ana designated by the petitioning party to be the “safety zone:” (1) associating with anyone known by the gang member to be a member of SNG unless such persons are all attending a class, on school business, or in a church service; (2) intimidating or annoying anyone who is a witness to any SNG activity or a victim of any SNG misbehavior; (3) possessing, selling or using any controlled substance; (4) drinking, possessing an open container of, or being under the influence of alcohol in a public place or open to public view; (5) possessing, or being in the company with a SNG member who possesses any firearm or deadly weapon. Moreno was admittedly served with the terms of this injunction sometime thereafter but before his arrest on January 17, 2007 for sitting in a lawfully parked car with a friend—allegedly a gang member—and an unnamed female, drinking beer.
DISCUSSION
Moreno contends that charging him with contempt of a gang abatement injunction and then elevating that misdemeanor to “wobbler” status under Penal Code section 186.22, subdivision (d) (see fn. 3, ante) due to the same gang-related conduct constitutes impermissible bootstrapping. He refers us to People v. Arrojas (2002) 96 Cal.App.4th 1439, in which a similar dual use of gang-related conduct was barred.
See People v. Vessell (1995) 36 Cal.App.4th 285, 291-292, in which “wobblers” are defined as crimes which may be designated as either misdemeanors or felonies.
Arroyas was charged with vandalism after officers found him with a green pen defacing a sign, and he admitted to being a member of a particular gang with the moniker of “Chewy.” The initials of that gang and the name “Chewy” were found written in green ink on several nearby walls. (People v. Arroyas, supra, 96 Cal.App.4th at p. 1441.)
The charge of vandalism was elevated to a felony for being gang-related under section 186.22, subdivision (d), and also enhanced by the allegation that it was gang related under section 186.22, subdivision (b). The reviewing court upheld the felony designation of the crime due to the application of section 186.22, subdivision (d), even though the vandalism statute at that time required proof that the value of the damage to the property exceeded $5,000 to constitute a felony. However, the reviewing court struck the application of section 186.22, subdivision (b), which resulted in enhancing any prison term by two, three or four years. It did so, notwithstanding “the purpose of [section 186.22] was to combat the ‘state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods.’ . . . . [¶] While any felony may be punished under section 186.22, subdivision (b)[], subdivision (d) presents an option to punish a felony differently than provided by subdivision (b)[], and also provides an option to punish gang-related misdemeanors more severely. Although subdivision (d) allows the court to impose felony punishment for a misdemeanor committed with a gang-related purpose, nothing in the statute or in its stated purposes suggests an intention of the people of this state to bootstrap subdivision (d) misdemeanors into subdivision (b)(1) felonies as a means of applying a double dose of harsher punishment.” (People v. Arroyas, supra, 96 Cal.App.4th at pp. 1444-1445, italics added.)
The Arroyas court emphasized that section 186.22, subdivision (d) did not specifically elevate the crime to felony status. The statute actually transferred whatever substantive crime is charged into a “wobbler,” granting the power to the sentencing court to impose either felony or misdemeanor punishment, in its discretion. (People v. Arroyas, supra, 96 Cal.App.4th at pp. 1443-1444.)
Section 594, subdivision (b)(2), as it stood in 2000, provided felony punishment for “maliciously” defacing, damaging or destroying property, but only if “the amount of defacement, damage, or destruction” was at least “five thousand dollars . . . .”
The District Attorney responds that Moreno has not been doubly punished: He is not facing two distinct enhancing subdivisions of section 186.22. He has committed a public offense which, solely because it is gang-related, is a wobbler under section 186.22, subdivision (d). Thus, he argues, it can now be charged as a felony under that provision. (§ 186.22, subd. (d); see People v. Arroyas, supra, 96 Cal.App.4th at p. 1446 [the subdivision grants the sentencing court discretion to treat the offense as either a felony or misdemeanor].) Such a construction merely meets the intent of the Gang Violence and Juvenile Crime Prevention Act—known as Proposition 21—a term of which became subdivision (d) of section 186.22. This law “voices the intent of the people that gang-related crimes receive enhanced punishment . . . .” (Id. at p. 1448.)
However, as the Arroyas court noted, Proposition 21 does not permit “a defendant receive double punishment because his or her crime fell within the scope of two statutes. Rather, [section 37 of Proposition 21] advises that where a crime does fall within the scope of two statutes, only the statute yielding the longer period of punishment should apply.” (People v. Arroyas, supra, 96 Cal.App.4th at p. 1448.) Thus, the question remains whether obtaining an injunction against gang-related conduct by a gang member and then enhancing said conduct because it is gang-related under section 186.22, subdivision (d), imposes the “double punishment” castigated in Arroyas.
In People v. Briceno (2004) 34 Cal.4th 451, the California Supreme Court addressed and resolved the issue whether any felony to which an enhancement under section 186.22, subdivision (b) is attached, may qualify as a serious felony for future enhancement under section 667, subdivision (a)(1). Serious felonies are listed in section 1192.7, subdivision (c) which includes in subparagraph (28)—added by the passage of Proposition 21—“any felony offense, which would also constitute a felony violation of Section 186.22[.]” Briceno argued that could mean only the felony of street terrorism under section 186.22, subdivision (a). The Court rejected this narrow interpretation, concluding that any felony to which an enhancement under section 186.22, subdivision (b) was attached, would thereafter comprise a “serious felony” for later enhancing purposes. (Id. at pp. 458-459.)
In so holding, the Court rejected the characterization that this interpretation resulted in double punishment or bootstrapping because “any felony that is gang related is not treated as a serious felony in the current proceeding, . . .” (People v. Briceno, supra, 34 Cal.4th at p. 465, emphasis added.) At the same time, the Briceno court approved the Arroyas holding by noting that it “avoids the impermissible bootstrapping that would occur if any felony that is gang related is also deemed serious in the current proceeding. Specifically, while it is proper to define any felony committed for the benefit of a criminal street gang as a serious felony under section 1192.7(c)(28), it is improper to use the same gang-related conduct again to obtain an additional five-year sentence under section 186.22(b)(1)(B). . . .” (Id at p. 465, original italics.) The Court reiterated the Arroyas determination that “‘nothing in the statute or in its stated purposes suggests an intention of the people of this state to bootstrap [section 186.22,] subdivision (d) misdemeanors into [section 186.22,] subdivision (b)(1) felonies as a means of applying a double dose of harsher punishment.’ [Citations.]” (Ibid.) In other words, the Supreme Court limits application of any gang-related enhancement to one elevating effect, which section 37 of Proposition 21 dictates must be the most punitive provision.
The pertinent point voiced in the Briceno opinion was that the “same gang-related conduct” cannot be used twice in the same sentencing calculation without violating the concept of double punishment for the same act. (See People v. Briceno, supra, 34 Cal.4th at p. 465, original italics.) That appears to have occurred in Moreno’s case: The same “gang-related conduct” is being used first as the violation of the injunction and then used again to elevate that offense from a straight misdemeanor to a wobbler under section 186.22, subdivision (d). It is most egregiously seen here because the actions comprising the violations of the court order are not criminal in themselves: They only become criminal because they are gang-related.
Specifically, Moreno allegedly violated the injunction by being a named gang member found “outside” between the hours of 10 p.m. and sunrise and in the company of another gang member, drinking alcoholic beverages. Nonetheless, the District Attorney emphasizes that he is not charged with that gang-related conduct; he is charged with willful disobedience of a lawfully issued court order. (See Raskin v. Superior Court (1934) 138 Cal.App. 668, 670 [contempt is essentially a crime against the authority of a court].) Thus, the actual offense with which he is charged does not, on its face, relate to the same facts used to elevate the crime under section 186.22, subdivision (d), i.e., gang-related conduct.
Irrespective of this attempt to characterize the charges in such a nondescript way, the injunction was issued to abate gang-related conduct. It also focused on otherwise-innocuous acts which are made criminal solely because they are engaged in by gang members for the benefit of that gang. And it is those otherwise-innocuous acts which comprise both the disobedience of the injunction and the proof of a gang connection for the enhancing allegation under section 186.22, subdivision (d). Thus, it is “the same gang-related conduct[used] again to obtain an additional” form of punishment (People v. Briceno, supra, 34 Cal.4th at p. 465, original italics), i.e., the elevated designation as a felony.
In People v. Englebrecht (2001) 88 Cal.App.4th 1236, a case involving an injunction issued by the San Diego Superior Court prohibiting gang members from wearing certain colors, using certain hand signs or voicing certain words indicative of that gang, the prosecution was only able to penalize a gang member engaging in such innocuous conduct because it had already established that such conduct was gang-related and that such gang behavior comprised a public nuisance. (Id. at p. 1257.) Without that showing, such conduct is merely the exercise of a person’s protected liberty: “[T]he freedom to loiter for innocent purposes is part of the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment. . . . Indeed, it is apparent that an individual’s decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is ‘a part of our heritage’ [citation] or the right to move ‘to whatsoever place one’s own inclination may direct’ identified in Blackstone’s Commentaries. [Citation.]” (City of Chicago v. Morales (1999) 527 U.S. 41, 53-54.)
Moreover, “it is appropriate to apply the rule of lenity in resolving any ambiguity in the ambit of a statute’s coverage. To the extent that the language or history of a statute is uncertain, this ‘time-honored interpretive guideline’ serves to ensure both that there is fair warning of the boundaries of criminal conduct and that legislatures, not courts, define criminal liability. [Citations.]” (Crandon v. United States (1990) 494 U.S. 152, 158, emphasis added.)
We conclude that the prosecution cannot legally criminalize otherwise lawful behavior based on the sole fact that it is gang related and then increase punishment for that behavior simply by again alleging the same gang-related fact. Let a writ of mandate issue directing respondent court to vacate its order of June 21, 2007, overruling petitioner’s demurrer, and to issue a new order sustaining the demurrer as to the allegation under section 186.22, subdivision (d). The alternative writ of mandate issued by this court on October 29, 2007, having served its purpose, is discharged. The stay previously issued is hereby dissolved.
WE CONCUR: RYLAARSDAM, J., O’LEARY, J.
All further section references are to the Penal Code unless otherwise stated.