PEOPLE v. RODRIGUEZ

Appellant's Answer Brief on the Merits

Cal.May 17, 2011

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF ..CALIFORNIA, Plaintiff and Respondent, Vv. JOE RODRIGUEZ, JR., Defendant and Appellant. Court of Appeal, Third Appellate District ) Supreme Court No. ) $187680 ) ) Court of Appeal No. . F057147 SUPREME COURT ) Superior Courtye FILED ) CRFO7288 GRo3) MAY 17 2011 ) 2) G2 deriok K, Ohtrich Clay Deputy Yuba County Superior Court, Honorable James L. Curry, Judge APPELLANT’S ANSWERBRIEF ON THE MERITS Diane Nichols State Bar No. 174830 P.O. Box 2194 Grass Valley CA 95945 530-477-8448 dianelnichols@aol.com Attorney for Defendant And Appellant Joe Rodriguez,Jr. By appointmentofthe Supreme Court under the Central California Appellate Program independent case system COPY TABLE OF CONTENTS Page TABLE OF CONTENTS.......ccccsccesssccsseesssreeseecesseceesenseeesaeecsesessuesessteestesenses i TABLE OF AUTHORITIESuo... ceccessecesesssesessesecsaesceessesesesesessseeenteraes iii ISSUE PRESENTED....0....cccccccccscessreessscessneeesesseneeceecseeesesasesasensteseuteessesenaes 1 RESPONDENT?’S CONTENTION.......ccccccssscssseesessessesesseeseesneesssessesessesenses 2 APPELLANT’S CONTENTION........cccccssscsscssecssssessseessessseseeessesssesenesensess2 STATEMENTOF THE CASE... cccccesccesseseccesesssseeessescseesaserseseresesnessesens 3 STATEMENTOF FACTS ou... cccccscssssssessnssssecssseesessesseessasenscsesetecssnsvensase 5 ARGUMENTS2... ce cccccsesseesessecsssssecssssseseaeeceseaseseceessessecsssesescneesaesensesnsensess 9 I. SECTION 186.22(A) DOES NOT APPLY TO AN ACTIVE PARTICIPANT WHO, ACTING ALONE,IS THE DIRECT PERPETRATOR OF FELONIOUS CRIMINAL CONDUCT...9 A. Introduction, Proceedings Below, And Standard Of Review ...........0.0.. 9 B. Section 186.22(a) Imposes Criminal Liability For An Active Participant In A Criminal Street Gang Only When The Defendant Aids Or Abets A Felony By Other Members Of His Gang...........ccceeeees 13 C. Because There Was Constitutionally Insufficient Proof Appellant Promoted, Furthered, Or Assisted In Felonious Criminal Conduct By Nortefio Gang Members, The Court Of Appeal’s Reversal Of Appellant’s Conviction Must Be Affirmed ........ccccccecsccsscccssscssssesseessecssessesssseesseeesseaees45 D. Conclusion...ccc eeeesesesessessscstssscssscecesesussenavasssauceseeeaueasrereuseesenaneaananens47 Il. WERE THIS COURT TO REVERSE THE COURT OF APPEAL’S DECISION, THE CASE SHOULD BE REMANDED TO THE COURT OF APPEAL FOR A DETERMINATION AS TO WHETHER SENTENCE ON THE ACTIVE PARTICIPATION CONVICTION SHOULD HAVE BEEN STAYED PURSUANT TO SECTION 654 ooceccececsseeneeencereceseeeesenecsessessensseseessaesesseseeeaesseenesaees48 CONCLUSION 0... ccecceeceeesseneceeseeteceesetsececsecaecaecasevaesesseesesarseeesesseeneeaess 51 WORD COUNT CERTIFICATION oo.cccccc ece eters eeeteeeeeeeeneeeneees 52 DECLARATION OF SERVICE ii TABLE OF AUTHORITIES Page(s) CASES Atchley v. City ofFresno (1984) 151 Cal.App.3d 635 oieeecccssscesteessecsreseeseseceseceeessessaeesstesnes 10 Bunch v. Coachella Valley Water Dist. (1989) 214 Cal.App.3d 203 oo. eeeeeeeeresteensceeessesteeseseseaestsesaeesstesses23 Burks v. United States (1978) 437 U.S. 1 [98 S.Ct. 2141, 57 L.Ed.2d 1]...ceeeeeeeeeees 11, 45 Busching v. Superior Court (1974) 12 Cal.3d 44oeecscccessneessssssesseecsscseesssesenessaseesessasensesseeenes21 California Teachers Assn. v. Governing Bd. ofRialto Unified School Dist. (1997) 14 Cal.4th 627ccccccsccssecsseensesecseseeseessssesesessensscsessresssesesseseaes 13 California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692iccecssccsectseeetessrssesseessesseessesesssasenseatens 13, 42 Carter v. California Department of Veterans’ Affairs (2006) 38 Cal.4th 914ooccccccssscstsesessssssesseseecseceesesessesseseaesseeneeeenes42 Coburn v. Sievert (2005) 133 Cal.App.4th 1483 occcsecsccsscseessesssecessscsssesecsrsseseneeeess 17 Curle v. Superior Court (2001) 24 Cal.4th 1057 ooo ceseeesceesecessecseeseescsecseseressessessecsenessessesaeens28 Evans v. CenterStone Development Co. (2005) 134 Cal.App.4th 151cccescesscsccscesesressseseseesessesseseesessesseens 10 Graynedv. City ofRockford (1972) 408 U.S. 104 [92 S.Ct. 2294, 33 L.Ed.2d 222]... ceeesetees4] Halbert’s Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233 oo. ciccccsccssscsssccssescsetecsseesessseetsersensesress 16, 42 Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142eeeeeneeereeereeecaecnetseessetsessetsssessesseeeeens23 iil TABLE OF AUTHORITIES (CONT’D) Page(s) CASES(cont’d) In re Jose P. (2003) 106 Cal.App.4th 458 ooocceceteeeeneeeeseeeeneeseneeseatenes 19, 29, 49 Inre Keisha T. (1995) 38 Cal.App.4th 220... cccccccesseeseesceeeseeseeeseaetsseseseesseeeateneeenaees 10 In re Lincoln J. (1990) 223 Cal.App.3d 322 oo. ceccccccecsesseesseceteecereeneetereteeeenaeeeeenatensees 33 Inre Thierry S. (1977) 19 Cal.3d 727 .occeccccecccceeeteseeceneseseseneteneseneteetieceeseeeeseaeerenerenseey 14 Jackson v. Virginia (1979) 443 U.S. 307 [99 S.Ct. 2781, 61 L.Ed.2d 560]...eee45 Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158.cececeeecnereteeeteeeeeeeeeteseneeseatersneenes40 Moyer v. Workmen’s Comp. Appeals Bad. (1973) 10 Cal.3d 222 ceccccecceeseecsecseecscecseeeneeseesenteesseeseeeneentsesenaes28 People v. Albillar (2010) 51 Cal.4th 47occcteeeeeeereeseeeeseseseseessessscssenseseetess passim People v. Beeman (1984) 35 Cal.3d 547 ooeccscecceterereeeeeeeeneeeneaseseeseesenenessessenserseeennes 31 People v. Belton (1979) 23 Cal.3d S16... ccccccecseeeeeecereeeeeeeeeereesneesseetesseesesseusreneeneeees30 People v. Bolin (1998) 18 Cal4th 297occcccteeeencesessesssessenesscsassessrseeasesenens 10, 11 People v. Britt (2004) 32 Cal.4th 944ccccrecneestneseeesessescessssnsseecseseseneeees48 People v. Calhoun (2007) 40 Cal.4th 398occseeeesersecesecsescessesssesseesrsssrsseseeenesses35 People v. Castenada (2000) 23 Cal.4th 743 oo. eeecesereereecssessecsresssssesesssessseessesenseaes passim iv TABLE OF AUTHORITIES (CONT’D) Page(s) CASES(cont’d) People v. Collie (1981) 30 Cal.3d 43 ooeeccsccnecsrectsesseesesssseesescsssesseseeeseessessressereens 32 People v. Demes (1963) 220 Cal.App.2d 423 oo... ccessecccnseetecsesccssecessscesessreseesseeesseseeeens 32 People v. Escobar (1992) 3 Cal.4th 740... ceccsecsccssessessessecsscsscesecseesseecseeceeseeeesseseeneseseens44 People v. Evers (1992) 10 CalApp.4th 588 0... ccceccsccsscssesscssesssecssecssscssesesssessecsessesersees48 People v. Ferraez (2003) 112 Cal.App.4th 925 vo. .ccccccccsssssssssessssssesssssssesstessecssesessssesrens49 People v. Frank (2006) 141 CalApp.4th 11920ccccsesccsscsecssecssscseesseseessesessesseeens46 People v. Gardeley, SUPIA, 14 CalAth vo... cccccccsescccsssceccsseeccssecessseecessnssececeussscessseveravecnsseserss42 People v. Gilbert (1969) 1 Cal.3d 475icscesenensectsessssesneecsecseeceecessesssesseessessesneseneens 28 People v. Green (1991) 227 Cal.App.3d 692 oo... ccceccsccscsesscsesssessseecresereees 17, 19, 31, 44 People v. Heitzman (1994) 9 Cal4th 189.ccscsccssssessesessssesesesessessseeseessecseesesessessrens4] People v. Herrera (1999) 70 Cal.App.4th 1456.0... cccscscccccsecsesssesserscssecseesssaesseseeeees48, 49 People v. Hicks (1993) 6 Cal4th 784.0. ccccessesesssesesecsrsecsesseeseesseessesesseeseesseessseaeens48 People v. Johnson (1980) 26 Cal.3d 557eieccsccssssessecsenscsesseeseesessesseesseesscsesstcsessessestersees45 People v. Jones (2001) 25 Cal.4th 98ooececesccsessressesscsssessseseesseeeseesseesecsecseceensesens 13 TABLE OF AUTHORITIES (CONT’D) Page(s) CASES(cont’d) People v. Kraft (2000) 23 Cal.4th 978 oo. ccccccseeecteesereneeeeesesseessesseseseseaeseesseaesaseeenenses 10 People v. Lamas (2007) 42 Cal.4th 516... cccccccseesseeeereeneeeeesteterereeterseeesneessieenienne 18, 33 People v. Loeun (1997) 17 Cal.4th Loiceseeneeeeteseeeeeeererseeseseseteeeiseeenereees 15, 42 People v. McCoy (2001) 25 Cal.4th L111eceeneeeeeeneceterereeteeeseeeeeeeeseesseatesneness 35 People v. Morales (2001) 25 Cal.4th 34... ecceseeeeeeeeeeteecneeessseessaesessceesenesseseeesoeeneenenees27 People v. Mouton (1993) 15 Cal.App.4th 1313oeeeeeeseeeteeteeeeerseecnsesssesseeseennesses 35 People v. Ngoun (2001) 88 Cal.App.4th 432 ooo. eceescesseeesreceeeteeeeeasenesssesseaeeseees passim People v. Palmore (2000) 79 Cal.App.4th 1290ceeeeneeererseereeesrseeseescnssnsseaeneesnenes48 People v. Perez (1979) 23 Cal.3d 545 oicccecsecscetererecteeeerereaeeeeeeeestesesesenssessssesensenenens48 People v. Pierce (1979) 24 Cal.3d 199cescneneecs essere ecsesssessssssseeessasesssssaeeesenseees 11 People v. Pieters (1991) 52 Cal.3d 894 oi cccccccetereeetecnsesecsssesscesssessesssscsnsersrerensneegs 13 People v. Robles (2000) 23 Cal.4th 1106...ecceeccesesesereseseceessscsseteenseeeeeenes 16, 26, 27 People v. Rodriguez (1998) 17 Cal.4th 253 ieeecseececseesecserssersecsesserenesseeseesesssesseneeeeseees 1] People v. Salcido (2007) 149 Cal.App.4th 356...cccecseeerteeneneeeees 12, 19, 34, 44 vi TABLE OF AUTHORITIES (CONT’D) Page(s) CASES(cont’d) People v. Sanchez (2009) 179 Cal.App.4th 1297cecccssccseeseessectsenesseeneeenees 12, 38, 44, 49 People v. Toro (1989) 47 Cal.3d 966eecscscccsessestecnecercnseceessesseeseseeesessssssnnessatesees 38 Scales v. United States (1961) 367 U.S. 203 [81 S.Ct. 1469, 6 L.Ed.2d 782]... cceseereeeen24 Simmons v. Superior Court (1959) 52 Cal.3d 373 oi cecsssescesecteetecsecsssnsesssseesseessseeesscsscseceesesteenees23 CONSTITUTIONS United States Constitution Fifth AMmendMentl..............ccecccccsssssssssessesseceecsseuccssecessrsseesseeorsaesevees41,45 Fourteenth Amendment 0.0... cccesesseecesessscnccseceseeseesennes 10, 41, 45 California Constitution Article I, Section 7 woccccccccccccccssssesccssscsesssessssccecestensnceeecestaceeessateareceeeens4] STATUTES Government Code SeCtION 9605 ooo. eeeceeesscsecenessestecseseesececseesecssessssesseseesesseesssesseeseeesennys 14 Penal Code SOCTON 7 ooiccecceccssessesseesseesetsecessesevseessesseeseessecseseasessaesaeecssseseatensuessaees30 Section 211eeecsecsessesecsecececsecsecsessesssecseseseeesseseeseseecseseeeseesseenueess 3 Section 186.20 through 186.33 .....cscesesssssessesessssseesseseeseesaseersssesees 13 Vil TABLE OF AUTHORITIES (CONT’D) Page(s) Penal Code (cont’d) Section 186.21 c.ecccccccccccsccstceseccsessesseceeceeseeeseeseesessessesersasesegenees 15, 26, 28 Section 186.22, subdivision (@) .....cccececeeessecessteeeesesteetseesseeeeeeeeens passim Section 186.22, subdivision (b) oo... ceccsceeeeeeeeeeesteeeteeeeneeeeseaenenes passim Section 186.22, subdivision (f) .....ccccccscceesteecssseeeesetteeeeeteeseseaseenneaes 18, 19 Section 186.22, subdivision (1)......cc:cceeeceeeeeeeeetreeeeeeneetteeneneenees 19, 29. 45 Section 190, subdivision (€)(3) .....cccececcceessseeseteeeereereerseseeserseeseesneeeenes 36 Section 190, subdivision (A)(22) ...cccccesceesseeeteseeeeeseeteesteeseeseteeenseasenes 36 Section 245, subdivision (a)(1) oo... eeseeeseeseceeeeseseseeeeseesseeseeseseeeseseeeegs 3 Section 422.75, SUbdIVISION (A) ....cc:cccsccceeeteecestteeeteesteeeteeeeetesueesensaseee28 Section 422.75, SubdIVISION (D) oo... eee eset teseesteteenseessstttseeeesseseesseeenees28 Section 654 vocccccccccccccsteseseceeescseceeceecseeeeeeeseeseeesseasesessssseraseseseneneenes 48-50 SOCtioNn 664 oi cecccccccscceccscnessteeeeeseereeseasenssseseessedceseeeeseenenseesseeesensseesenegs 3 Section 667, subdivisions (a) through (d) oo. ceeeeeeesseteeseeeeseeeeeeeeeees 3 Section 667, SUbdIVISION (D) .....cceeeeeceeeseceteeteeeneeeenaeeteseseeceetstsaseeneeesaees28 Section 667.5, SUbdIVISON (D) oo... eceesceestteeeteeeeeteteeeteneeeeseseeuaeeenssaeenens 3 Section 181, SUBdIVISION 6 ....ccccecccccesstecceeesssteeeteeeeesaeeeesetesenaneeesesenaas 3 Section 1170.12, subdivisions (b), (C) .c..cccccccssceeeseseeteteeeeeesesteeesseeseeens 3 Section 12022.1, subdivsiion (€) ........ccceeeccesseeeeseeeseeeeneeeeseeeteeeteeesenees28 Section 12022.53, subdivision (C) .......cceeeeseesecseeeeseeesteessssssessseseeeeneas 36 Section 12031, subdivision (a)(1) .....eceeeseeseessseeessssteesesssesenseeseaeenens 18 Section 12031, subdivision (a)(2)(C) ..ccccecccceseeeeseeteeeneeeenseesecnsenenees26 Vill TABLE OF AUTHORITIES (CONT’D) Page(s) California Rules of Court Rule 8.520(C)(1) ...ccceceesssesscesseesseessssscersccesaseceseceecseecesaeessteessaseseessness 52 OTHER AUTHORITIES JUDICIAL COUNCIL OF CALIFORNIA CRIMINAL JURY INSTRUCTIONS CALCRIM NO. 401 oecescessscnseteestecceceseessesecsessarsseseeeseseseseeeearees 31 CALCRIM No. 1401 occccececscecsessssesecssssesssessessesseesseseesesseseeses 17,27 CALIFORNIA JURY INSTRUCTIONS, CRIMINAL CALJIC No. 6.50 cceccccscceceesessesessecsceseesecseecsessesseesecsassesseessecsesessesenseseents 27, 49 Assembly Bill No. 2013 (1987-1988 Regular Session) Statutes 1988, Chapter 1242 oo. ececcesessesscsecseeecseesessessecerssesseesssseseesesseseucsecauesesvasens 13, 29 Author’s Letter to Chairman of Senate Committee on Appropriations, August 18, 1988, Assembly Bill No. 2013 (1987-1988 Regular Session) Statutes 1988, Chapter 1242 oo... icccccsccssecsesscsssccsssscssscsersecsssscsseseeserevsnees43 Author’s Statement to Senate Third Reading, August 31, 1988, p. 1, Assembly Bill No. 2013 (1987-1988 Regular Session) Statutes 1988, Chapter 1242oecccccssscsnesscseeseesessecsesecseeseesscssestssesseseseaecseseesessssessssesrenes43 Author’s Statement to Senate Judiciary Committee dated May 10, 1988,p. 1, Assembly Bill No. 2013 (1987-1988 Regular Session) Statutes 1988, Chapter 1242ocecscessecsscsscssessessseseseesasesesseseesesessesessessessesseeessessusesens43 Legislative Counsel’s Digest, Assembly Bill No. 2013 (1987-1988 Regular Session) Statutes 1988, Chapter 1242.0... .ccccccccecsecsssscesecesesssensecsesseersesses 39 Legislative Counsel’s Digest, Senate Bill No. 1555 (1987-1988 Regular Session) Statutes 1988, Chapter 1256 .........cccccccccsssssessecsecsecssesssessevsscenenes 39 1x TABLE OF AUTHORITIES (CONT’D) Page(s) Senate Bill No. 1555 (1987-1988 Regular Session) Statutes 1988, Chapter L256 ecccccescccecssecsscesceceeeeeseceeeeseereeeceeseeenseseneeeaeeeareeseeeesesaseesneseiisneasneeeentey 14 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF ) Supreme Court No. CALIFORNIA, ) S187680 Plaintiff and Respondent, ) ) Court of Appeal No. Vv. ) F057147 ) JOE RODRIGUEZ,JR., ) Superior Court No. Defendant and Appellant. ) CRF07288 ) ) Court of Appeal, Third Appellate District Yuba County Superior Court, Honorable James L. Curry, Judge APPELLANT’S ANSWERBRIEF ON THE MERITS ISSUE PRESENTED Can a person whoactively participates in any criminal street gang with knowledge that its members engage in or have engagedin pattern of criminal gangactivity be guilty of violating Penal Code section 186.22, subdivision (a) -- active participation in a criminal street gang -- when he or she, acting alone, is the direct perpetrator of felonious criminal conduct? RESPONDENT’S CONTENTION Section 186.22(a) applies to an active participant who, acting alone, is the direct perpetrator of felonious criminal conduct. APPELLANT’S CONTENTION Section 186.22(a) does not apply to an active participant who, acting alone, is the direct perpetrator of felonious criminal conduct. STATEMENTOF THE CASE A jury found appellant guilty of attempted robbery (Count 1; Pen. Code,' §§ 664, 211) with an allegation the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)) and ofactive participation in a criminal street gang (Count 3; § 186.22, subd. (a)).? (1 CT? 40-43, 118, 127-129; 2 RT 468-469.) Appellant waivedhis right to a jury trial and the court foundtrue the allegations that appellant had suffered a strike (§§ 667, subds. (a)-(d), 1170.12, subds. (b), (c)) and had served a prior prison term (§ 667.5, subd. (b)). (1 CT 113, 119.) Appellant filed a new trial motion pursuantto section 1181, subdivision 6. (1 CT 151-180 [defense motion], 183-209 [prosecution opposition], 210-215 [defense reply].) The trial court granted the new trial motion as to the section 186.22, subdivision (b) allegation on Count1, explaining: The Court’s convinced there is insufficient evidence for that finding to stand. It’s beyond a reasonable doubt that Mr. Rodriguez is a memberof a gang, the Nortefios; that he was active. There is no evidence beyondthat to support the gang enhancement. There’s nothing about the crime that connects it to the activities of the gang other than the expert’s statement that robbery is one of the crimes Nortefios commit. 'All further statutory references are to the Penal Code unless otherwise indicated. *Onthe prosecution’s motion, the court dismissed Count2, assault with a deadly weapon,i.e., hands (§ 245, subd. (a)(1)) with a gang benefit allegation (§ 186.22, subd. (b)) after trial began. (1 CT 105.) *““CT”stands for the clerk’s transcript. “RT” stands for the reporter’s transcript. The casesthat I’ve read say there’s got to be something more than gang membership and/or association. In this case, we have no evidence that the area where the crime was committed had anything to do with gangterritory, gang turf. There was speculation from the experts that maybe Mr. Rodriguez’s tattoos at least, in part, may have been visible, although the victim saw notattoos. There was no gang language used during the attack. There were no gang signs. There is simply nothing beyondthe fact that he is a gang memberthat would support that finding, and the Court will, in fact, grant the Defendant’s motion for a newtrial as to the gang enhancement. (1 CT 242.) The prosecution announced it would notrefile the allegation. (1 CT 234, 243.) The court sentenced appellant to eight years, four months instate prison. (1 CT 235-236, 238-239, 245.) Appellant appealed. (1 CT 250.) The Court of Appeal reversed the gang participation conviction (Count3) for insufficient evidence. (Typed opn., p. 32.) Following the People’s petition for review, this Court granted review. STATEMENT OF FACTS Around 10:30 p.m. on May 27, 2007, Stanley Olsen was unlocking his truck on East 22nd Street in Marysville in Yuba County, when he heard someone say something to him. (1 RT 137, 143.) He turned and saw appellant coming toward him. (1 RT 138, 273-274.) Appellant was wearing jeans and a white t-shirt that covered his armsto five inches below the shoulder. (1 RT 145.) Not recognizing appellant, Olsen asked appellant if Olsen knew him,and appellant said, “You eye fuck me, nigger, and I] kill you.” (1 RT 138.) Appellant approached Olsen until the two men’s chests were touching. (1 RT 138.) Appellant said, “Give me your fucking money”and said he would “fuck [him] up.” (1 RT 138, 147-148.) Olsen told appellant to get away, appellant punched him in the jaw, and they grappled,falling to the ground with appellant on top. (1 RT 138-139.) Appellant punched Olsen in the head and back as he got up. Olsen ran, telling a friend to call police. (1 RT 139.) Appellant was pulled into a nearby apartment by a woman,and,shortly thereafter, police found appellant hiding undera bed in that apartment, where appellant’s girlfriend lived. (1 RT 146, 265, 269-271, 284.) Appellant had tattoos associated with the Nortefio gang and other tattoos in the Nortefio colors of red and black on his chest and the back tricep area of his upper arms. (1 RT 187-190.) There was no evidencethat Olsen saw the tattoos on the backs of appellant’s armsor that appellant made any reference to any gang or flashed any gang signs during the offense. (2 RT 369-370.) When booked, appellant indicated he might have a problem with Surefio inmates and admitted he was a Nortefio gang member from Woodland. (1 CT 225-226, 234-238.) Gang expert Allan Garza of the Yuba County Sheriff's Department testified to facts showing Nortefios in Yuba County were a criminalstreet gang. (1 RT 174-178, 180-184.) Based upon appellant’s tattoos and several police contacts in 1995 and 1999, apparently in Yolo County, where appellant was seen wearing gang colors and clothing and displaying gang signs, and appellant’s admission at the time of booking that he was a Nortefio gang member from Woodland who might have a problem with Surefio inmates, Garza opined that appellant was an active Nortefio gang member. (1 RT 190-195.) Based on a hypothetical question reflecting the facts of the case, as well as his opinion that somepart of one of appellant’s tattoos (“Northern Warrior”) would bevisible if he were wearing a t-shirt, Garza opined the attempted robbery was committed for the benefit of the gang becauseit proved to fellow gang membersthat appellant was willing to commit crimes for the gang,it installed fear of the gang in others, and it madeit easier for gang members to commit and get away with crimes. (1 RT 196- 200.) Evenif the tattoo were not visible, the attempted robbery wasstill committed for the benefit of the gang because it would build status within the gang and because it meant appellant could commit other crimesfor the gang. (1 RT 210-211.) Garza had never heard of a person participating in a gang whodid not commit crimes. (1 RT 219.) He had never heard ofa validated gang member committing a crime for his own personal motive or satisfaction. (1 RT 222.) Marysville Police Sergeant Christian Sachsalso testified to facts showing that the Nortefios in Yuba County werea criminalstreet gang. Based on appellant’s tattoos, his earlier admission to gang membership during a booking process in Woodland,his red shoelaces, his red cigarette lighter, and Woodlandpolice records from 1995 to 1999 that appellant had admitted his Nortefio membership and had been seen in the company of other gang members, Sachs opined that appellant was an active member of the Nortefio gang. (2 CT 342-346, 344-347, 348-351, 353-355.) Based on a hypothetical question reflecting the facts of this case, Sachs also opined that the attempted robbery was committed for the benefit of the gang becauseit intimidated the public, made the public afraid and threatened retribution, and intimidated actual and potential witnesses to crime. (2 RT 356-360.) Althoughthe officers’ testimony assumedthe Nortefio gang in Marysville, Yuba County, was connected with the Nortefio gang in Woodland, Yolo County, there was no testimony that the Yolo County Nortefios were a subset of the Yuba County Nortefios. (1 RT 177, 178, 179, 184, 2 RT 306, 325, 330, 344.) Garza did not know whetherappellant belonged to a subset of the Nortefios in the Yuba-Sutter area. (1 RT 207.) Garza opined it was possible a Nortefio memberin the Yuba-Sutter area knew what was going on with subsets in another county. (1 RT 204.) ARGUMENTS L SECTION186.22(A) DOES NOT APPLY TO AN ACTIVE PARTICIPANT WHO, ACTING ALONE,IS THE DIRECT PERPETRATOR OF FELONIOUS CRIMINAL CONDUCT. A. Introduction, Proceedings Below, And Standard Of Review. Section 186.22, subdivision (a) (hereafter “§ 186.22(a)” or “gang participation’’) punishes “[a]ny person whoactively participates in any criminal street gang with knowledgethat its members engage in or have engagedin a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in anyfelonious criminal conduct by members ofthat gang....” Specifically at issue here is the meaning ofthe italicized phrase “willfully promotes, furthers, or assists in any felonious criminal conduct by members ofthat gang.” Appellant was convicted in Count 1 of robbery with an enhancement that the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b) (hereafter “§ 186.22(b)” or “gang-benefit enhancement”). (1 CT 118, 127; 2 RT 468.) In Count3, appellant was also convicted of the substantive offense of active participation in a criminalstreet gang (§ 186.22(a)), based on the robbery offense. (1 CT 118, 128; 2 RT 468.) The trial court granted appellant’s motion for a newtrial on the gang-benefit enhancementas to Count1, and the prosecution elected notto retry the allegation. (1 CT 242.) On appeal, appellant maintained that the evidence the trial court found lacking whenit granted a newtrial on the gang-benefit enhancement-- no substantial evidence connecting the robbery to the gang -- was also insufficient to sustain a conviction of the substantive gang participation offense.’ (Typed opn., p. 14; Appellant’s OpeningBrief (“AOB”) 18-26.) “Respondentconfined its arguments to procedural forfeiture and did not address the merits of appellant’s substantive claims on appeal. (Typed opn., p. 13, fn. 7; Respondent’s Brief (“RB”) 11-18.) Respondent did not petition for review on this issue and, in this Court, respondent has merely referenced its forfeiture argumenthistorically, in footnotes in the Statement of the Case (Respondent’s Opening Brief on the Merits (“RBOM”)7,fn. 15, 8-9, fn. 18), has not argued the matter in its Summary of Argumentor Argumentsections, and has not cited any legal authority in support of argument,all of which indicate respondent has abandonedthis issue. (Evans v. CenterStone Development Co. (2005) 134 Cal.App.4th 151, 160 {court need not consider issues discussed only in a footnote]; Jn re Keisha T. (1995) 38 Cal.App.4th 220, 237, fn. 7 [“We interpret this casual treatmentas reflecting .. . lack of reliance on this argument’’]; Atchley v. City ofFresno (1984) 151 Cal.App.3d 635, 647 [point asserted without argument or authority need not be discussed by reviewing court].) The constitutional sufficiency of the issue was indeed raised below. Appellant plainly raised the issue of whether appellant promoted felonious criminal conduct on two grounds: first, that the trial court erred in denying the new trial motion and, second, that there was constitutionally insufficient evidence under the Fourteenth Amendmentto the United States Constitution (AOB 21-22, citing People v. Steele (2002) 27 Cal.4th 1230, 1249-1250 [constitutional challenge to sufficiency of the evidence]; People v. Kraft (2000) 23 Cal.4th 978, 1053 [same, citing People v. Johnson (1980) 26 Cal.3d 557, 578]; People v. Bolin (1998) 18 Cal.4th 297, 331 [same,citing Jackson v. Virginia (1979) 443 U.S. 307, 319-320 [99 S.Ct. 2781, 61 L.Ed.2d 560]]). Appellant requested reversal with noretrial under the Fifth and Fourteenth Amendments, the remedy for an appellate reversal on groundsof evidentiary insufficiency. (AOB 26,citing Burks v. United States (1978) 437 U.S. 1, 17-18 [98 S.Ct. 2141, 57 L.Ed.2d 1].) Contrary to respondent’s earlier claim, a defendant does not waivehis right to a 10 The Court of Appeal concludedthat there was constitutionally insufficient evidence to support the gang participation offense. (Typed opn., p. 14.) It held that section 186.22(a) imposes criminalliability for active participation in a criminal street gang only where the defendantis aiding and abetting a felony offense committed by the gang’s members. (Typed opn., p. 6, citing People v. Castenada (2000) 23 Cal.4th 743, 752 (“Castenada’).) The court found the phrase “promot[ing], further[ing], or assist[ing| in any felonious criminal conduct by membersofthat gang” requires that the perpetrator aid and abeta specific felony by other members of his gang, which requires perforce that there be more than one participant. (Typed opn., p. 5.) Respondentargues that the Court of Appeal’s decision is wrong because the opiniontreats as binding this Court’s statements in Castenada, supra, 23 Cal.4th 743, it misreads the facts of Castenada, it incorrectly concludesthat a person cannot promote or further his own criminal conduct, and it leads to absurd results, while maintaining respondent’s judgmentof acquittal on the basis of evidentiary insufficiency by moving for a newtrial. (/bid.; see also People v. Rodriguez (1998) 17 Cal.4th 253, 262 [most complete challenge to sufficiency is demandfortrial].) Where “the reviewing court has found the evidence legally insufficient, the only ‘just’ remedy available for that court is the direction of a judgment of acquittal” based on the Double Jeopardy Clause. (Burks v. United States, supra, 437 US. at p. 18; People v. Pierce (1979) 24 Cal.3d 199, 210 [insufficient evidence tantamountto verdict of acquittal, whereretrial would be barred, so newtrial also improperafter equivalent decision on appeal].) 1] position is consistent with the legislative intent. (Respondent’s Opening Brief on the Merits (“RBOM”) 12-13, 14.) Respondent contends the phrase at issue is applicable to an active gang participant “when heorshe, acting alone,is the direct perpetrator of felonious criminal conduct.” (RBOM 14, citing People v. Ngoun (2001) 88 Cal.App.4th 432 (“Ngoun”), Peoplev. Salcido (2007) 149 Cal.App.4th 356 (“Salcido’”’), and People v. Sanchez (“Sanchez”) (2009) 179 Cal.App.4th 1297.°) Respondentneverprovidesits actual construction of the phrase, but does offer three broad applications of it. First, respondent argues it is applicable to an active gang participant “when he or she, acting alone,is the direct perpetrator of felonious criminal conduct.” (RBOM 14.) Second, respondent indicates that “an active participant whois the sole perpetrator of felonious criminal conduct -- or whoacts in concert with either a gang memberor a non-gang member-- is guilty of violating section 186.22(a).” (RBOM 25.) Third, respondentalso argues section 186.22(a) appliesto: the direct perpetrator; the aider or abettor; the accessory after the fact [citation]; and to the member who promoted or furthered ‘felonious criminal conduct’ -- rather than a specific felony -- by telling active participants to generally put in work for the gang(i.e., to commit crimes for the gang), but who would not be an aider or abettor to any specific felony committed by the active participants because he or she would neither know whatspecific crimes the active participants ‘Respondentalso relies upon People v. Cabrera (S189414) formerly at 191 Cal.App.4th 276 (RBOM 12, 27-29), review granted March 23, 2011, after respondentfiled its brief, with briefing deferred pending resolution ofthe instant case. This case can no longerbecited. 12 were going to commit nor havethe specific intent to aid or abet those particular crimes. (RBOM 45-46.) Noneofthese applications is proper, as will be explained, and respondent’s position is wrong, asis its criticism of the Court of Appeal’s decision. Where the meaningofa statute is at issue, a reviewing court applies an independent standard of review. (People v. Jones (2001) 25 Cal.4th 98, 108.) Issues of statutory construction are subject to de novo review. (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699.) While a reviewing court does not rewrite legislation to conform to a presumedintent (California Teachers Assn. v. Governing Bd. ofRialto Unified School Dist. (1997) 14 Cal.4th 627, 633), the primary purpose of statutory construction is a determination and effectuation ofthe purposeofthe law as enacted. (People v. Pieters (1991) 52 Cal.3d 894, 898.) Further canonsofstatutory construction will be set forth where appropriate. B. Section 186.22(a) Imposes Criminal Liability For An Active Participant In A Criminal Street GangOnly When The Defendant Aids Or Abets A Felony By Other Members Of His Gang, The California Street Terrorism Enforcement and Prevention Act of 1988 (“STEP Act”; §§ 186.20-186.33) created both substantive offenses and sentence enhancements for gang-related activity. (Sen. Bill No. 1555 (1987-1988 Reg. Sess.) Stats. 1988 ch. 1256; Assem.Bill No. 2013 (1987- 13 1988 Reg. Sess.) Stats. 1988 ch. 1242.°) Section 186.22(b) applied a conduct enhancement to an underlying substantive offense, when the offense was committed for the benefit of the gang (“gang-benefit enhancement”) and will be discussed, post. Section 186.22(a) established the substantive offense of active participation in a criminalstreet gang (“gang participation”) and provides: Any person whoactively participates in any criminal street gang with knowledgethat its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in anyfelonious criminal conduct by membersofthat gang shall be punished by imprisonmentin a county jail for a period not to exceed one year, or by imprisonmentin the state prison for 16 months, or two or three years. (§ 186.22(a), emphasis added.) Theitalicized portion of section 186.22(a) is at issue here, specifically, whether one “who willfully promotes, furthers, or assists in any felonious criminal conduct by membersofthat gang” encompassesan active gang participant in a criminal street gang whoacts alone asthe direct perpetrator of felonious criminal conduct. A direct perpetrator, acting alone, cannot commit a gang participation offense because the plain ‘Two almostidentical bills (Assem. Bill No. 2013 and Sen. Bill No. 1555) resulted in the STEP Act, with the major difference between the twobills being Senate Bill No. 1555’s inclusion of civil forfeiture proceedings. (Sen. Bill No. 1555, Leg. Counsel’s Rep. to Governor on Enrolled Bill, dated September 28, 1988 [sic].) When twostatutes dealing with the same subject conflict, the most recently enacted one expresses the Legislature’s will and governs any conflicts between the two. (dn re Thierry S. (1977) 19 Cal.3d 727, 744; Gov. Code, § 9605.) Both bills were signed by the governor on September 23, 1988, and the provisions of Senate Bill No. 1555, the later chaptered bill, controls where conflicts exist. 14 language ofthe statute requires the defendant aid and abet a specific felony by a memberofhis gang, a construction supported by case law,the language ofaiding and abetting law,andlegislative intent. In construing a statute, a reviewing court ascertains and effectuates the Legislature’s intent. (People v. Albillar (2010) 51 Cal.4th 47, 54-55 (“Albillar’); People v. Loeun (1997) 17 Cal.4th 1, 8-9 (“Loeun”).) Respondenthas not proffered its understanding ofthe legislative intent behind section 186.22(a). Section 186.21, which introduces section 186.22 and other gang-related provisions as a whole, acknowledges the danger to public order and safety posed by criminal street gangs, stating in pertinent part: It is the intent of the Legislature in enacting this chapter to seek the eradication of criminal activity by street gangs by focusing uponpatterns of criminal gang activity and upon the organized nature of criminal street gangs, which together, are the chief source of terror created by street gangs. (§ 186.21.) Specifically, section 186.22(a) “created a substantive offense for active participation in a criminal street gang; before its enactment, no law authorized the punishment of a gang member for gang membership irrespective of the punishment imposed uponthe principal for the gang crimeitself.” (Ngoun, supra, 88 Cal.App.4th at p. 435, citing Jn re Alberto R. (1991) 235 Cal.App.3d 1309, 1318.) This Court has foundthat section 186.22(a) “target[s] the scourge of gang members committing any crimes together and not merely those that are gang related” (Albillar, supra, 51 15 Cal.4th at pp. 55-56, original emphasis omitted, emphasis added), which comports with the legislative intent both to respond to the increasing criminal street gang violence throughout the state and to concentrate on the group nature of criminal street gangs. Thus, the intent behind section 186.22(a) is to punish active gang participants committing crimes with other gang members. This intent does notclarify whether the Legislature intended to punish direct perpetrators acting alone as gang participants. Further intent must be ascertained from the statutory language. Thestatutory language is the most reliable indicator of the Legislature’s intent becauseit is the language ofthe statute itself that has successfully braved the legislative gauntlet. (Halbert’s Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1238.) This Court looks to the wordsofthe statute, giving them their usual and ordinary meanings,in context. (Castenada, supra, 23 Cal.4th at p. 747; Albillar, supra, 51 Cal.4th at p. 55.) If there is no ambiguity in the language, the plain meaning controls. (/bid.) If the statutory language is susceptible to more than one reasonable construction, the reviewing court can look to legislative history to assist in ascertaining legislative intent. (People v. Robles (2000) 23 Cal.4th 1106, 1111.) “Ambiguity exists when statute is capable of being understood by reasonably well-informed persons in two or more different senses.” (2A Singer & Singer, Sutherland Statutory Construction (7th ed. 2007) § 45:2, 16 The problem of ambiguity, p. 13; see also Coburn v. Sievert (2005) 133 Cal.App.4th 1483, 1495.) None of the appellate courts which have looked at section 186.22(a), including the Court of Appeal here, have found the phrase at issue ambiguous, nor does respondent contend it is. Appellant agrees the languageis straightforward and susceptible of only one meaning, that accorded it by the Court of Appeal in the instant case. The plain language of section 186.22(a) should be affordedits plain meaning. It is helpful to look first at parts of the phrase at issue -- ‘““who willfully promotes, furthers, or assists in any felonious criminal conduct by membersofthat gang . . .” -- to see how this Court or other courts have thus far construed its meaning. “[A]ny felonious criminal conduct by members of that gang”has been judicially construed. The “felonious criminal conduct” must be the commission of, or attempted commissionof, a specific felony. (People v. Green (1991) 227 Cal.App.3d 692, 704 (“Green”), overruled on other grounds in Castenada, supra, 23 Cal.4th 743; see CALCRIM No.1400 [Felonious criminal conduct means committing or attempting to commit [any of] the following crime[s]: ; .) In Green, supra, 227 Cal.App.3d 692, the court found the conduct must be “clearly felonious” conductto eliminate doubtsas to its constitutionality, stating that, if the phrase: 17 means commission of an offense amounting to a felony, it contains superfluous language. If, however, it contemplates something less than the commission of an offense amounting to a felony, it makes criminal the promotion, furtherance or assistance of conduct, whichis notitself criminal. Such a construction would impinge on protected conduct. (/d.at p. 704.) The conduct that is promoted, furthered, or assisted, then, must be a “separate” and “specific felony offense committed by gang members.” (Castenada, supra, 23 Cal.4th at p. 749; see id. at p. 752 [finding § 186.22(a) accords with due process becauseofits “plainly worded requirements -- criminal knowledge, willful promotion of afelony, and active participation in a criminal street gang”’], emphasis added;see also Lamas, supra, 42 Cal.4th at p. 524 [actual conduct promoted must be a felony, not a misdemeanor under § 12031(a)(1) elevated to a felony by operation of § 186.22(a)].) Thus, based on the requirementthat the “felonious criminal conduct” be a specific felony, “felonious criminal conductis not the “pattern of gang activity” described in section 186.22, subdivision(f), i.e., the commission oftwo or more enumerated predicate offenses. The specific felony need not be gang-related; it can be any felony. (Albillar, supra, 51 Cal.4th at pp. 54-55.) In Albillar, three members of the same gang had raped a 15-year-old girl. (51 Cal.4th at pp. 52-53.) On appeal, the defendants argued that the gang participation offense contained an implied requirementthat the felonious criminal conduct be gangrelated 18 and that there was no evidencethat the criminal conduct being promoted, furthered, or assisted was gangrelated. (/d. at p. 54.) Relying upon the plain meaning of the phrase who “willfully promotes, furthers, or assists in any felonious criminal conduct by membersofthat gang,” this Court found the statute did not target felonious gang-related conduct, but any felony conduct. (/d. at p. 55, emphasis original.) The specific felony need not be one of the predicate offenses listed in section 186.22, subdivision(f). (Salcido, supra, 149 Cal.App.at p. 369.) Finally, the phrase “by membersof that gang” has beenpartially construed in Green, supra, 227 Cal.App.3d 692.’ The term “member,”the Green court found, was a term of ordinary meaning requiring no further definition and had been judicially defined as a relationship between a person and an organization that is not accidental, artificial or unconsciously in appearance only. (/d. at p. 699.) Section 186.22(a) “target[s] the scourge of gang members committing any crimes together and not merely those that are gang related.” (Albillar, supra, 51 Cal.4th at pp. 55-56, original emphasis omitted, emphasis added.) Thus, the specific felony TAsto the proof requirementsfor “[a]ny person whoactively participates in any criminal street gang” foundearlier in section 186.22(a), “it is not necessary to prove that the person is a memberofthe criminal street gang.” (§ 186.22, subd. (i); see also Jn re Jose P. (2003) 106 Cal.App.4th 458, 466 [defendant need not be a gang memberto violate § 186.22(a)].) “Active participation in the criminalstreet gangis all that is required.” (§ 186.22, subd.(i).) 19 being promoted, furthered, or assisted in must be committed by fellow gang members. So nowto the rest of the phrase. Turning to the plain language of the verbs in the phrase at issue, “promote, further or assist in” all mean to help do something,to aid, to encourage. “The necessity of looking to a standard dictionary to ascertain the usual meaning of a word does not make the word ambiguous.” (2A Sutherland Statutory Construction, supra, § 46:2, Literal meaning, pp. 162-163, citing Stamm Theatres, Inc. v. Hartford Casualty Ins. Co. (2001) 93 Cal.App.4th 531, 539.) Indeed, the ordinary sense of the word is to be foundin its dictionary definition. (/bid.) To assist is “[t]o help, aid: a. a person in doing something”or “‘c. an action, process, or result.” (1 The Oxford English Dict. (2d. ed. 1989) p. 715, col. 2.) The Court of Appeal foundthat “[to] assist [] in any felonious criminal conduct by membersofthat gang”is to aid and abet the conduct, which by its nature requires more than oneparticipant (typed opn., p. 5), which respondent concedes (RBOM 39-40) and with which the dissenting opinion agrees (typed opn., p. 7, dis. opn. of Sims, J. [“Someone doesnot ‘assist’ himself”]). The remaining verbs, “promote” and “further,” all share the same meaning-- to help to do something, to assist. To promote meansto “(flurther the growth, development, progress, or establishment of (anything); to help forward (a process or result); to further, advance, 20 encourage.” (12 The Oxford English Dict., supra, p. 616, col., 3.) To further means “[t]o help forward, assist (usually things; less frequently persons); to promote, favour (an action or movement).” (6 The Oxford English Dict., supra, p. 285, col. 2.) The rules of grammar can be referenced in statutory construction. (Busching v. Superior Court (1974) 12 Cal.3d 44, 52.) The direct object of these transitive or action verbs, promote andfurther, is “any felonious conduct,”i.e., the felonious conduct is what is promotedor furthered. The prepositional phrase, “by members of that gang,” indicates who performsthe felonious conduct. Thus, as the Court of Appeal explained, the phrase meansthat the defendant must promote or further -- must help forward, further, advance, encourage or assist -- a specific felony committed by members of his gang. (Typed opn., p. 20, emphasis added.) In essence, the definitions of promote or further mean the sameasthat of “assist in.” Respondent’s construction of the statute is awkwardandtortured, assumingthat the Legislature chose this circumlocution, assigning criminal liability for an active participant acting alone by describing him as one “who willfully helped forward, furthered, advanced, encouragedorassisted his own felonious criminal conduct by a memberofthe gang,including himself.” (See RBOM 40.) Respondentcriticized the Court of Appeal’s statement that “[i}t makes no senseto say that a person has promoted or furthered his own criminal conduct” (RBOM 37-38), but has failed to 21 explain why the Legislature would choose such unnatural and cumbersome sentence structure and word choices to convey the meaning respondent advocates. Although the Court of Appeal focused on the illogic of promoting, furthering, or assisting in one’s own conduct (typed opn., p. 5), that is just another way of saying that the only rational construction based on the plain meaningrule does not logically encompass direct perpetrators acting alone. One doesnot further the development of one’s own conduct, one does not encourage one’s own conduct, one does not actively support one’s own conduct, and one does not help forward one’s own conduct, any more than oneassists in one’s own conduct. One does, on the other hand, further the developmentof, encourage, support, help forward the activities of another, the rational construction. Thus, the plain meaningofassist, further, and promote -- all of which are merely different ways of saying the same thing -- supports the Court of Appeal’s construction of section 186.22(a) as not encompassing direct perpetrators acting alone. In Ngoun, supra, 88 Cal.App.4th 432, the court lookedat the literal meaning of the words, “promote,” “further,” and “assist in” and found those meanings-- to help, aid, or contribute to the progress of -- squared with the expressed purposesofthe statute. (/d. at p. 436.) The court held that “[a]n active gang member whodirectly perpetrates a gang-related offense ‘contributes’ to the accomplishmentofthe offense no less than does an active gang member whoaidsor abets or who is otherwise connected to 22 such conduct.” (/bid.) Ngoun is not persuasive. Because the offense being promoted, furthered, or assisted in is “a specific felony committed by gang members(Castenada, supra, 23 Cal.4th at p. 749), not merely the pattern of the kinds of offenses customarily committed by the gang, the promotion or furtherance mustbe of the specific felony, and, because it makes no sense to promote or further one’s own conduct, more than oneparticipant is required, which meansa direct perpetrator acting alone cannotviolate section 186.22(a). (Typed opn., p. 21.) Again, the construction advocated by Ngoun and respondentis notrational, but convoluted and strained. The Court of Appeal looked at this Court’s guidance in Castenada, supra, 23 Cal.4th 743, in which this Court had examined whatthe phrase “actively participates” meansin section 186.22(a). (/d. at p. 745.) Respondent argues at some length that the requirementof aiding and abetting expressed in Castenadais dicta which should not have been followed. (RBOM 26-35.) Dicta consists of “[iJncidental statements or conclusions not necessary to the decision” and thus not regarded as authority. (Simmons v. Superior Court (1959) 52 Cal.3d 373, 378; Bunchv. Coachella Valley Water Dist. (1989) 214 Cal.App.3d 203, 212 [“general observations, unnecessary to the decision]; see also, Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1157.) The language in Castanedais not dicta, but ratio decidendi, as this Court upheld the constitutionality of the statute by describing elements the Legislature had 23 provided as necessary to prove a violation of section 186.22(a), exceeding the federal due process requirements. (Castenada, supra, 23 Cal.4th atp. 749.) Recently, in Albillar, supra, 51 Cal.4th 47, Justice Baxter, writing for the majority, rather surprisingly stated that this Court in Castenada had merely added language, unnecessary to its decision, that “every person incurring criminal liability under section 186.22(a) has aided and abetted a separate felony offense committed by gang members. [Citation.] By linking criminalliability to a defendant’s criminal conduct in furtherance of a street gang, section 186.22(a) reaches only those street gang participants whose gang involvementis, by definition, ‘more than nominal or passive.” (/d. at p. 58, citing Castenada, supra, 23 Cal.4th at p. 752.) However, a careful reading of Castenada showsthat the language about aiding and abetting was part and parcel of the court’s reasoning. In Castenada, supra, 23 Cal.4th 743, this Court first noted that the Legislature enacted section 186.22(a) while cognizant of Scales v. United States (1961) 367 U.S. 203 [81 S.Ct. 1469, 6 L.Ed.2d 782] (“Scales”), which held that the state cannot punish mere association with a group unless there is proof the defendant knew ofits illegal aims and intends to further them. (23 Cal.4th at p. 749.) The Legislature complied with Scales and the due process requirementofpersonal guilt by requiring not only that the defendantactively participates but also that he know ofthe gang’s 24 illegal activities and “willfully promotes, furthers, or assists in any felonious criminal conduct by membersofthat gang.” (23 Cal.4th at p. 749.) Noless than three separate times in Castenada, this Court expressed the latter requirement as aiding and abetting a separate felony offense, first in finding that section 186.22(a) satisfied due process becauseit limited liability to: those who promote, further, or assist a specific felony committed by gang members and who knowofthe gang’s pattern of criminal gang activity. Thus, a person whoviolates section 186.22(a) has also aided and abetted a separate felony offense committed by gang members,as the Court of Appeal in Green, supra, 227 Cal.App.3d 692, 703-703, acknowledged. (/bid. [anyone violating § 196.22(a) “would also ... be criminal liable as an aider and abettor to any specific crime” committed by the gang’s members]; see generally People v. Beeman (1984) 35 Cal.3d 547, 560 [199 Cal.Rptr. 60, 674 P.2d 1318] [defining an aider and abettor as one whoacts “with knowledgeofthe criminal purposeofthe perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of” an offense (italics omitted)].) (23 Cal.4th at p. 749.) Second,in rejecting the defendant’s argumentthat an active participant must devote all or a substantial part of his time andefforts to the gang, this Court stated: As we have explained, section 186.22(a) imposescriminal liability not for lawful association, but only when a defendant “actively participates” in a criminal street gang while also aiding and abetting a felony offense committed by the gang’s members. (23 Cal.4th at pp. 750-751.) Third, this court held: 25 Moreover, as we have explained, every person incurring criminalliability under section 186.22(a) has aided and abetted a separate felony offense committed by gang members. (See ante, p. 749.) Bylinking criminal liability to a defendant’s criminal conduct in furtheranceof a street gang, section 186.22(a) reaches only those street gang participants whosegang involvementis by definition, “more than nominal or passive.” (23 Cal.4th at p. 752.) The three very specific references to aiding and abetting by this Court were not dicta, but were integral to its examination of section 186.22(a) to determine what elements the Legislature relied upon to comply with due process and support the Court of Appeal’s reliance on this Court’s language. Evenif not binding, this Court’s initial construction of the statute is certainly persuasive. Atleast two justices of this Court read Castenada precisely the same way in a subsequent case. In People v. Robles, supra, 23 Cal.4th 1106, this Court found that section 12031, subdivision (a)(2)(C), which makesit a felony for an active participant in a criminal street gang to carry a loaded firearm in public, incorporated all of the elements of section 186.22(a) into the offense, including the third element of “willfully promot[ing], further[ing], or assist[ing] in any felonious criminal conduct by members of that gang.” (/d. at p. 1115.) In dissent, Justice Baxter, joined by Justice Brown,argued that section 12031, subdivision (a)(2)(C) incorporated only the elementofactive participation, not the third element, which Justice Baxter read as “the targeted gang membersalso must be found guilty of 26 aiding and abetting a separate felony offense by other gang membersas required for a section 186.22(a) violation”(id. at p. 1119, (dis. opn. of Baxter, J.)) and “proofof (3) aiding and abetting someother felony offense by gang members”(id. at p. 1119, fn. 5, (dis. opn. of Baxter, J.)). The pattern jury instructions in both CALJIC and CALCRIM reflected this same understanding of Castenada and section 186.22(a) for many years. Published jury instructions are “not themselves the law, and are not authority to establish legal propositions or precedent.” (People v. Morales (2001) 25 Cal.4th 34, 48, fn. 7.) “At most, when they are accurate, ... they restate the law. (/bid.) For many years, CALJIC No, 6.50 and CALCRIM No. 1400 restated the law under Castenada and Green as requiring proofthat the defendant had aided and abetted another gang memberin committing a felony. (CALJIC No. 6.50 (1991 rev.) [“4. That person aided and abetted [a] member[s] of that gang in committing the crime[s]ofJ; CALCRIM No.1400 (Jan. 2006rev.) p. 885 [“ 4. The defendant’s words or conductdid in fact aid and abet the commission of the crime”’].) It was not until long after Ngoun was published in 2001 that either instruction wasrevised to add direct and active commission of the felony offense. (CALJIC No. 6.50 (Jan. 2005 ed.) p. 236; CALCRIM No. 1400 (Fall 2007 ed.) p. 983.) Appellant’s construction avoids surplusage. A court must “givfe] significance to every word, phrase, sentence, and part of an act in pursuance 27 of the legislative purpose.” (Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063; Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230 [accord].) “A cardinal rule of construction is that construction making some words surplusageis to be avoided.” (People v. Gilbert (1969) 1 Cal.3d 475, 480.) As discussed, ante, the specific felony offense that is promoted, furthered, or assisted in need not be gang-related; it can be any felony. (Albillar, supra, 51 Cal.4th at pp. 55-56.) If there is no requirementthe felonious conduct be gang-related, then the phrase “any felonious criminal conduct by membersofthat gang” is surplusage unlessit requires the defendantaid or abet another gang memberin the commission of the underlying felony. The phrase is merely surplusage if it means nothing more than “commits a felony.” If the Legislature had wanted to write a statute applicable to any person who commits a felony, it knows howto do so, as demonstrated by various statutes. (See, e.g., § 422.75, subds. (a), (b) [enhancementfor defendant “who commits a felony that is a hate crime”]; § 186.22(b)(1) [any person whois convicted of a felony”); § 12022.1, subd. (e) [if the person is convicted of a felony”] § 667, subd.(b) [those who commit a felony”].) Had the Legislature intended solely to punish any active gang participant who commits a felony, it could have drafted the statute to say so. Respondent’s construction is flawed, in part because it reads back into section 186.22(a) a requirement that, where a defendantis not the 28 direct perpetrator, the prosecution prove the defendant is a gang member. Asto the active participant requirement, “it is not necessary to prove that the person is a memberofthe criminal street gang.” (§ 186.22, subd.(i); see also In re Jose P., supra, 106 Cal.App.4th at p. 466.) However, under respondent’s construction, the prosecution would needto prove that appellant was a gang memberfor purposes of showingthat he furthered felonious conduct by a memberofthe gang,himself. Respondent’s construction, which advocates culpability under section 186.22(a) when a defendantacts in concert with a non-gang member (RBOM 25), is also defective becauseit reads out of section 186.22(a) the requirement the conduct being promoted,furthered, or assisted in be “by a memberofthat gang.” The conduct need not be gang- related, but it must be conduct by a memberof the defendant’s own gang. As explainedearlier, the later chaptered bill, Senate Bill No. 1555 controlled where there were differences between it and Assembly Bill No. 2013. Assembly Bill No. 2013 used the language “any felonious criminal conduct by gang members.” (Assem.Bill No. 2013 (1987-1988 Reg. Sess.) Stats. 1988, ch. 1242, p. 3, § 186.22(a).) The language of “by a memberof that gang” prevailed. The word “that” in the phrase “by membersofthat gang”is used as a demonstrative adjective, “[i]ndicating or identifying a person or thing either as being pointed out of as having just been mentioned.” (2 The New Shorter Oxford English Dict. (3d ed. 1993)p. 29 3268, col. 3.) This evidences an intent that the conduct the membersofthe gang in which the defendant is an active participant committhe felony. (Castenada, supra, 23 Cal.4th at p. 749.) Respondent’s construction is also untenable because it contradicts this Court’s construction of “felonious criminal conduct”as a specific felony. Respondent argues that the Legislature meant to include “the member who promotedor furthered ‘felonious criminal conduct’ -- rather than a specific felony -- by telling active participants to generally put in workfor the gang (i.e., to commit crimes for the gang), but who would not be an aider or abettor to any specific felony ....” (RBOM 46.) In other words, respondent maintains that section 186.22(a) includes active participants who further or promote generalized felony conduct, not a specific felony, by other gang members. This approach has been rejected by this Court. Furthermore, the Court of Appeal’s approach is confirmed by the fact that the language ofsection 186.22(a)is the language of aiding and abetting. This Court has looked to the use of a term in other statutory and decisional law in order to construe that term in a given statute. (People v. Belton (1979) 23 Cal.3d 516, 524 [looking to statutes and case law to determine meaningof “testimony”in § 1111]; see also § 7(16) [words and phrases that have a peculiar and appropriate meaning in law must be construed according to such meaning].) One aids and abets a crime when, 30 with knowledge of the perpetrator’s unlawful purpose, one, “by act or advice aids, promotes, encouragesor instigates the commission ofthe crime” with the specific intent to do so. (People v. Beeman (1984) 35 Cal.3d 547, 561; CALCRIM No. 401 [“Someoneaids and abets a crime if he or she knowsofthe perpetrators unlawful purpose and he or she specifically intends to, and does infact,aid, facilitate, promote, encourage, or instigate the perpetrator’s commission ofthat crime.”].) As defined, infra, to assist, to promote, and to further mean to advance, to encourage, to assist, to aid. In Green, supra, 227 Cal.App.3d 743, the court found the phrase “willfully promotes, furthers, or assists in any felonious criminal conduct” common and similar to other phrasesin the criminallaw,i.e., to those defining an aider and abettor, one who “with the intent or purpose of committing, encouraging,or facilitating the commission of the crime, by act or advice aids, promotes, encouragesor instigates the commission ofthe crime.” (Green, supra, 227 Cal.App.3dat p. 703, citing CALJIC No.3.01 which restated commonlaw principles.) The court reasoned: The similarity of the relevant phrase in Penal Code section 186.22 with that employed in determiningif a person is an aider and abettor means, wethink, that the phrases should be viewed as synonymous. As the Attorney General concedes, for a person to be criminally liable under Penal Code section 186.22, he or she would also have to be criminally liable as an aider and abettor to any specific crime committed by a member or membersof a criminal street gang. (Green, supra, 227 Cal.App.3d at pp. 703-704.) 31 For purposesof aiding and abetting crime, “[t]o ‘aid’ is to assist or help another,” and to abet in its legal sense means“to encourage, advise or instigate the commission of a crime.” (1 Wharton’s Crim. Law (15th ed. 1993) Parties, § 29, In general, p. 181; see People v. Demes (1963) 220 Cal.App.2d 423, 432 [aid perpetrator by acts or encourage by words or gestures], disapproved on other grounds in People v. Collie (1981) 30 Cal.3d 43, 64, fn. 19.) Thus, to assist, to promote, and to further, convey the same meanings as the wordsofaiding and abetting -- aiding and encouraging. Courts have a duty to construe statutes harmoniously where that can reasonably be done. (2A Sutherland Statutory Construction, supra, § 53.1, pp. 549-550.) The Court of Appeal looked atthe relationship between section 186.22(a) and subdivision (b) of the samestatute. Section 186.22(b) applied a conduct enhancementto an underlying substantive offense, when the offense was committed for the benefit of the gang (“gang-benefit enhancement”): Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminalstreet 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 or attempted felony of which he or she has been convicted”receives additional specified punishment. (§ 186.22(b).) 32 As explained by the Court of Appeal, the subdivisions define different aspects of criminal gang involvement. (Typed opn., p. 17.) Section 186.22(a) requires the existence of a criminal street gang, active participation by the defendantin the criminal street gang, knowledge that the gang’s members engagein or have engagedin a pattern of criminal gang activity, and perpetration or willful promotion, furthering, or assisting of felonious criminal conduct by membersofthat gang. (People v. Lamas (2007) 42 Cal.4th 516, 523; In re Lincoln J. (1990) 223 Cal.App.3d 322, 327.) In addition to the existence of a criminal street gang, the gang- benefit enhancementalso has three elements: first, conviction of a predicate felony; second, that was committed for the benefit of, at the direction of, or in association with a criminalstreet gang; and,third, that was committed with the specific intent to promote, further or assist in any criminal conduct by criminal street gang members. (§ 186.22(b)(1).) The Court of Appeal found that the gang-benefit enhancement’s purposeis to enhancesentenceofa predicate felony “committed both to benefit a criminal street gang and with the intent to promote, further, or assist any criminal conduct by its members. (Typed opn., pp. 17-18.) On the other hand, the court found that the substantive offense of active participation “requires that the defendant promote,further, or assist separate ‘felonious criminal conduct by membersofthat gang,’ the gang in which the defendant is an active participant.” (Typed opn., p. 18, citing § 186.22, 33 subd. (a), emphasis in opinion.) Thus, the court reasoned, “[t]he operative distinction is the difference between the aiding and abetting of felonious conduct by gang membersandtheintention to do so.” (Typed opn., p. 18.) In Salcido, supra, 149 Cal.App.4th 356, the court interpreted Ngoun to eliminate participation by gang membersin the criminal conduct as an element ofthe offense. (149 Cal.App.4th at pp. 368-369.) This interpretation resulted in the erroneous replacementof the third element of section 186.22(a) -- actual participation as a principal in the felonious conduct of members of the gang -- with the third element of subdivision (b)(1) -- a general intent to promote any criminal conduct by gang members. This construction erroneously conflates the distinction between the two subdivisions, promoting or furthering a felony with the intent to promote or further illegal conduct. The result of the plain meaningrule’s application to a statute can be harsh or unjust or even mistaken, as long as it is not absurd. (2A Sutherland Statutory Construction, supra, 46:1, The plain meaningrule,p. 157.) Respondent argues that the Court of Appeal’s interpretation of the statute leads to absurd results. (RBOM 41-44.) In reality, the results pointed to by respondent merely show that the statute does not sweepall gang-related offenses into its ambit, a result that may be uneven, even unjust, but not ridiculous. Respondentposits that “a gang member whois the sole perpetrator of felonious criminal conduct can never be found guilty 34 of violating section 186.22(a), while the active participant who aids and abets that gang membercan.” (RBOM 43-44.) However, as the Court of Appeal explained, when two or more persons commit a crime together, direct perpetrators will most frequently fall within section 186.22(a), because both a perpetrator and aider/abettor generally act in part as an actual perpetrator andin part as an aider/abettor, with the line between the two blurred. (Typed opn., p. 21, citing People v. McCoy (2001) 25 Cal.4th 1111, 1120; see also People v. Mouton (1993) 15 Cal.App.4th 1313, 1321- 1325 [defendant can be guilty as both principal and accessory where evidence showsdistinct and independent actions supporting each crime].) Asthis Court hasstated, “[i]t is often an oversimplification to describe one personas the actual perpetrator and the other as the aider and abettor.” (People v. McCoy, supra, 25 Cal.4th at p. 1120; People v. Calhoun (2007) 40 Cal.4th 398, 403.) Where a direct perpetrator acts in part as a perpetrator and in part as an aider and abettor, the direct perpetrator will be punished undersection 186.22(a). Nordoes a gang-motivated direct perpetrator acting alone go unpunished. Whenthereis only one perpetrator, if he acts for the benefit of the gang andto generally promote criminal conduct by criminal street gang members,he is not only convicted of the underlying felony but his punishmentfor that offense is enhanced undersection 186.22(b)(1). The dissent in the Court of Appeal advancesan in-terrorum example (typed 35 opn., pp.-5-6 (dis. opn. of Sims, J.), which respondentcites as well (RBOM 41). In that example, a gang leader, acting alone, shoots and kills several opposing gang members under circumstances whereit is clear he did so for gang-related reasons. In that example, not only could the leader be convicted of the underlying murders, but also he could have his punishment enhanced undersection 186.22(b). More significantly, the gang leader would no doubt be incarcerated for life, as he could receive several consecutive life-without-the-possibility-of-parole sentences (§ 190, subd. (a)(3) [multiple murders] or (a)(22) [active participantin criminal street gang with murdercarried out to further the gang’s activities], along with several consecutive 25-years-to-life enhancements for discharge of a gun causing death (§ 12022.53, subd. (d)). The ready availability of existing punishmentfor direct perpetrators may have ledlegislators not to be concerned about whether a consecutive eight month sentence or even an imposed but stayed sentence (see ArgumentII, infra [application of § 654 to § 186.22(a)) would be imposed on direct perpetrators. This approachis consistent with the legislative intent behind section 186.22(a) which concentrated on the group nature of criminal street gangs (§ 186.21), was motivated by the knowledgethat “no law authorized the punishment of a gang member for gang membership irrespective of the punishment imposed upon the principal for the gang crimeitself’ (Ngoun, supra, 88 Cal.App.4th at p. 435, citing In re Alberto R., supra, 235 Cal.App.3d at p. 1318), and 36 targeted “gang members committing any crimes together” (Albillar, supra, 51 Cal.4th at pp. 55-56). The court in Ngoun, supra, 88 Cal.App.4th 432 expressed concern that the Legislature could not have intended to deter criminal gangactivity by the palpably irrational means of excluding the more culpable and including the less culpable participant in such activity.” (/d. at p. 437.) However, such an approachis notillogical. Various substantive offense provisionsare in place to punish more culpable direct perpetrators who act alone, and, as explained above, the Legislature could have been targeting with section 186.22(a) gangparticipants less directly involved. Respondent next argues that the Court of Appeal misread the facts of Castenada whenit found that “gang members whoare co-perpetrators acting in concert fall under section 186.22(a)’s purview”and claims that the facts of Castenada “actually support the holdings of the dissent and the other courts of appeal to have considered the issue.” (RBOM pp. 35-37.) The Court of Appeal did not rely on Castenada’s facts as support forits reasoning, but merely used thosefacts as an illustration of a fact pattern wherea direct perpetrator could be convicted. (Typed opn., pp. 12-13 [“perpetrators may come within the languageof section 186.22, subdivision (a),” noting blurred line between perpetrators and aiders and abettors,citing People v, McCoy (2001) 25 Cal.4th 1111, 1120]; see also typed opn., pp. 21-22.) The facts in Castenadarelated to the issue here are notclearly set 37 out in the decision (the defendant and two companions, impliedly, but not expressly identified as, fellow gang members, robbed two victims) because this Court in Castenada court was not considering the issue here. (See also Sanchez, supra, 179 Cal.App.4th at pp. 1306-1307 [understanding the defendant in Castenada to be a perpetrator of one offense and an aider and abettor of another].) The Court of Appeal did not rely uponthe facts of Castenadato bolster its reasoning or decision, for a good reason. Cases are not authority for propositions not considered therein. (People v. Toro (1989) 47 Cal.3d 966, 978,fn. 7.) Despite that well-settled maxim, respondent attempts to rely upon the facts of other cases to support its position. (RBOM 36-37,citing Negoun, supra, 88 Cal.App.4th at p. 437 [citing People v. Herrera (1999) 70 Cal.App.4th 1456; Castenada, supra, 23 Cal.4th 743, People v. Funes (1994) 23 Cal.App.4th 1506; People v. Smith (1993) 21 Cal.App.4th 342 and claiming the facts of those cases provided indirect support forits reasoning and decision because, in each, a defendant had been convicted as direct perpetrator of substantive felony andof active gang participation based on same felony, with all convictions affirmed without mention of issue].) Again, cases are not authority for propositions not considered therein, and all that the cases cited in Ngoun, including Castenada, establish is that the issue raised here was not raised in those cases. This irrelevant argumentdiverts attention from the main issue. 38 Respondent arguesthatits interpretation is consistent with the legislative intent behind section 186.22(a), citing section 186.21 and “the Legislative Counsel’s Digest.” (RBOM 44-46.) Asset forth earlier, section 186.21 acknowledged the danger to public order and safety posed by criminal street gangs andindicated an intent to eradicate criminals street gang activity by focusing onits patterns andits organized nature. (§ 186.21.) This intent comports with this Court’s pronouncementthat section 186.22(a) “target[s] the scourge of gang members committing any crimes together and not merely those that are gang related.” (Albillar, supra, 51 Cal.4th at pp. 55-56, original emphasis omitted, emphasis added.) Otherwise, section 186.21 demonstrates only a general intent to solve the problem of gangs but sheds no light on How the Legislature wanted to do so, i.e., whetherit intended with section 186.22(a) to encompassdirect perpetrators acting alone. Respondentcites the commentin the Legislative Counsel’s Digest that “[u]nder existing law, there are no provisions which specifically make the commission ofcriminal offenses by individuals who are members of street gangs a separate and distinctly punished offense.” (RBOM45,citing Legis. Counsel’s Dig., Assem. Bill No. 2013 (1987-1988 Reg. Sess.) Stats. 39 1988 ch. 1242.8) Respondent claimsthis language “evidences the Legislature’s intent to create in section 186.22(a) a crime which punished an active participant who engaged in felonious criminal conduct separately from any punishmenthe or she would receive for the underlying felonious criminal conductitself.” (RBOM 45.) Appellant agrees the Legislative Counsel’s Digest is relevant as to intent (although not binding) and entitled to great weight, as it is reasonable to presume the Legislature acted with the intent and meaning expressedin the digest. (Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1169.) However, respondent has cited to the Legislative Counsel’s Digest for Assembly Bill No. 2013, not to Senate Bill No. 1555, which, as noted in footnote 6, ante,is controlling as to any differences between the twobills because it was the later chaptered bill. The Legislative Counsel’s Digest for the controlling bill, Senate Bill No. 1555 states that, “[u]nder existing law, there are no special provisions for the punishment of crimes committed by members of street gangs.” (Legis. Counsel’s Digest, Sen. Bill No. 1555 (1987-1988 Reg. Sess.) Stats. 1988, ch. 1256.) However, because both bills were almost identical, and the Legislature passed them both around the same time, any difference between the two commentsis probably insignificant. Both comments in both digests indicate that the Legislature wantedto ‘Respondent has not provided a copy of the digest it is referencingto this Court or to appellant, nor has respondent asked this Court to take judicial notice of the particular version of the digest at issue. 40 create several substantive gang-related offenses that had previously not existed, but neither commentin either digest sheds any light on whetherthe Legislature intended to punish a direct perpetrator acting alone or only an aider and abettor as an active participant. The fact the Legislature wanted to create several substantive gang-related offenses does not shed light on the meaning ofthe languagein section 186.22(a). Respondent’s interpretation of the comment-- that the Legislature intended to punish gang participation separately from the underlying substantive offense -- does not provethat the Legislature wanted to punish direct perpetrators acting alone. Respondent also commentsthat “[t]here is no indication that the Legislature intended to create a crime that was limited to those gang members whoaided or abetted another member’s criminal conduct.” (RBOM 45.) The meaning ofa statute should be gleaned from whatthe Legislature said, not from whatlegislators may have intended to say but failed to articulate. The language of a penalstatute, not some intent never conveyed, must impart meaningto those against whom it is aimed and to those who enforceit to avoid vagueness and due processviolations. (U.S. Const., 5th, 14th Amends.; Graynedv. City ofRockford (1972) 408 U.S. 104, 108 [92 S.Ct. 2294, 33 L.Ed.2d 222]; Cal. Const., art. I, § 7; People v. Heitzman (1994) 9 Cal.4th 189, 199.) Here, there are very clear indications the Legislature intended to create a crime limited to those who aided and 4] abetted another gang member’s conduct-- the statutory language reflecting aiding and abetting and the actions by other gang members. The language is always the mostreliable indication of the Legislature’s intent (Loeun, supra, 17 Cal.4th at pp. 8-9; People v. Gardeley, supra, 14 Cal.4that p. 621) because the language “has successfully braved the legislative gauntlet.” (Halbert’s Lumber, Inc. v. Lucky Stores, Inc., supra, 6 Cal.App.4th at p. 1238.) Although the absence of ambiguity dispenses with a need to review the legislative history, a reviewing court may look to determine whetherthe legislative history is consistent with the plain language construction the court has employed. (Albillar, supra, 51 Cal.4th at p. 56.) The various reports on the bill prepared for the Senate and Assembly committees do not discuss the languageat issue here or its application. To the degree an author’s statements about pending legislation constitute “a reiteration of legislative discussion and events leading to the adoption of proposed amendments rather than merely an expression of personal opinion, they are entitled to consideration. (California Teachers Assn. v. San Diego Community College Dist., supra, 28 Cal.3d at p. 700; see also Carter v. California Department of Veterans’ Affairs (2006) 38 Cal.4th 914, 928-929 (“Where an author’s statements appear to be part of the debate on the legislation and were communicatedto other legislators, we can regard them as evidenceoflegislative intent”].) In a statement to the Senate Judiciary 42 Committee on May 10, 1988, Assemblywoman Gwen Moore,author of Assembly Bill 2013, stated that the bill madeit a separate offense for a person to actively participate in a criminal street gang and assist in any felonious conduct by the gang with knowledgethat it has engagedin a pattern of criminal activity. This will ensure that persons who handthe weaponsto other gang membersor whodrive the vehicle for a shooting will be punished for what they can not help but know will be involvement in serious criminalactivity. (Author’s Statement to Senate Judiciary Committee dated May 10, 1988, p. 1, Assem. Bill No. 2013 (1987-1988 Reg. Sess.) Stats. 1988, ch. 1242, emphasis original.) Similarly, at the Senate Third Reading, Assemblywoman Moore reiterated that the statute made “a separate offense for a personto actively participate in a criminal street gang andassist in any felonious criminal conduct by the gang with knowledgethat it has engagedin a pattern of criminalactivity,” providing again the example of those providing weapons and driving a car. (Author’s Statement to Senate Third Reading, August 31, 1988, p. 1, Assem. Bill No. 2013 (1987-1988 Reg.Sess.) Stats. 1988, ch. 1242.) A letter from Assemblywoman Mooreto the Chairmanofthe Senate Committee on Appropriations again explained the bill made“it a separate crimeto for [sic] a person who knowsabout a gang’s pattern of criminalactivity to actively participate in the gang andassist in commission [sic] of any felony....” (Author’s Letter to Chairman of Senate Committee on Appropriations, August 18, 1988, p. 1, Assem. Bill No. 2013 (1987-1988 Reg. Sess.) Stats. 1988, ch. 1242.) These explanationsofthe 43 substantive offense of gang participation show the Legislature was criminalizing assistance in the commission of a felony by the gang, not punishing the direct sole perpetrator of such felonies, a legislative intent consistent with the Court of Appeal’s construction of the statute. Lastly, respondent relies upon the fact that the Legislature amended section 186.22 in 2005, 2006, 2009, and 2010, but, although presumed awareofthe holdings ofNgoun, Salcido, and Sanchez, did notalter the language of section 186.22(a). (RBOM 46.) Although respondentcites no authority for this proposition, re-enactmentof a phrase already construed in decisions can imply legislative approval ofprior judicial interpretation. (People v. Escobar (1992) 3 Cal.4th 740, 750-751.) Legislative inaction is a “weak reed upon which to lean” because something more than mere silence is required before acquiescence becomes implied legislation. (/d. at p. 951.) However, in 1991, long before Ngoun wasdecided in 2001, Green, supra, Cal.App.4th 227 held that the phrase “willfully promotes, furthers, or assists in any felonious criminal conduct” was synonymous with aiding an abetting a specific crime committed by another gang member(id. at p. 704), so the samelack ofaffirmative disapproval upon which respondentrelies applies to appellant’s construction, but the Legislature has simply not expressly or impliedly endorsed either position. Section 186.22 was specifically amendedin reaction to part of Green’s holding asto active participation (id. at pp. 699-700 [definition of active 44 participation]; § 186.22, subd. (i) [active participation under § 186.22(a) does not require membership or devotion ofall or substantial part of time to criminal street gang]; see Pen. Code with Evid. Code and Selected Penal Provisions of Other Codes (LexisNexis 2011) § 186.22, 2000 Notes [subd. (i) added to disapprove of reasoning in Green that person must devoteall or substantial portion of time to gang under subd.(a)]), yet no action has been undertaken for over 20 years to amend section 186.22(a) as to the phraseat issue here. After 2001, when Ngoun waspublished, the on-going split of authority betweenits holding and that of Green has negated any probativeness as to subsequent re-enactments of section 186.22(a) by the Legislature. C. Because There Was Constitutionally Insufficient Proof Appellant Promoted, Furthered, Or Assisted In Felonious Criminal Conduct By Nortefio Gang Members, The Court Of Appeal’s Reversal Of Appellant’s Conviction Must Be Affirmed. If this Court affirms the Court of Appeal’s construction of section 186.22(a), it should also affirm the Court of Appeal’s reversal of the active gang participation conviction. Even were this Court to adopt respondent’s construction of section 186.22(a) (or another construction), however, there is constitutionally insufficient evidence to uphold the conviction. (U.S. Const., 5th, 14th Amends.; Jackson v. Virginia, supra, 443 U.S.at pp. 319- 320; Burks v. United States, supra, 437 U.S. at pp. 17-18; People v. Johnson, supra, 26 Cal.3d at p. 578.) This Court should remand the matter 45 to the Court of Appeal for an opportunity for briefing of the sufficiency issue in accord with any construction arrived at by this Court other than the one adopted in the Court of Appeal. Alternatively, this Court should examine the evidence to determineif it was constitutionally sufficient. Noevidence wasintroduced that appellant shouted any gang slogans or flashed any gang signs. (2 RT 369-370.) He wasdressed in a white-t- shirt and jeans, not in Nortefio gang attire or colors (black and red). (1 RT 145, 187-190.) None ofhis tattoos were seen by the victim, although one gang expert testified that the bottom of the Northern Warrior tattoo on the upper bicep would have been visible. (1 RT 145, 187-190, 2 RT 369-370.) Noother Nortefio gang members were present. Althoughthe officers’ testimony assumed the Nortefio gang in Marysville, Yuba County, was connected with appellant’s Nortefio gang in Woodland, Yolo County, there wasno testimony the Yolo County Nortefios were a subset of the Yuba County Nortefios. (1 RT 177, 178, 179, 184, 2 RT 306, 325, 330, 344.) Garza did not know whetherappellant belonged to a subset of the Nortefios in the Yuba-Sutter area. (1 RT 207.) Asthe trial court stated in granting a new trial motion as to the gang- benefit enhancement, “[t]here is simply nothing beyondthe fact that he is a gang memberthat would support that finding.” (See People v. Frank (2006) 141 Cal.App.4th 1192, 1199.) Under any construction of section 186.22(a), the evidence was constitutionally insufficient. 46 D. Conclusion. This Court should affirm the decision of the Court of Appeal. 47 IL. WERE THIS COURT TO REVERSE THE COURT OF APPEAL’S DECISION, THE CASE SHOULD BE REMANDED TO THE COURT OF APPEAL FOR A DETERMINATION AS TO WHETHER SENTENCE ON THE ACTIVE PARTICIPATION CONVICTION SHOULD HAVE BEEN STAYED PURSUANT TO SECTION 654. Thetrial court sentenced appellant to 16 monthsas to the active participation conviction, consecutive to the sentence asto the attempted robbery conviction. On appeal, appellant contended that the court should have stayed sentence pursuantto section 654 andthat, if consecutive sentences were appropriate, the courtfailed to state reasons for imposing consecutive sentences. (AOB 43-47.) The court erred, becauseit should have stayed sentence under section 654, which bars imposition of separate sentences for both active gang participation and crimes proving the element of promotion of felonious criminal conduct by fellow gang members.” The appellate court reversed the active gang participation conviction,so it did not reach the sentencing issue for that count. Were this Court to reverse the This Court has granted review on the question “Does Penal Code section 654 bar imposition of separate sentences for the offense of active participation in a criminal street gang in violation of Penal Code section 186.22, subdivision (a), and for the crimes used to prove one element of that offense -- that the defendant have promoted, furthered, and assisted felonious criminal conduct by membersofthat gang?” in People v. Mesa, previously at 186 Cal.App.4th 773, review granted October 27, 2010 (S185688). 48 appellate court’s decision, this Court should remandthe matter for consideration of the section 654 issue as well as the consecutive sentencing issue. Section 654 prohibits multiple punishmentfor an indivisible course of conduct even though it violates more than onestatute. (People v. Hicks (1993) 6 Cal.4th 784, 789.) Whether a course of conductis indivisible dependsonthe intent and objective of the actor. (People v. Evers (1992) 10 Cal.App.4th 588, 602; People v. Palmore (2000) 79 Cal.App.4th 1290, 1297.) “If all the offenses were incident to one objective, the defendant maybe punishedfor any one of such offenses but not for more than one.” (People v. Perez (1979) 23 Cal.3d 545, 551.) A determination that the defendant entertained multiple criminal objectives is a factual question and will be upheld on appeal if supported by substantial evidence. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) The application of section 654 “turns on the defendant’s objective in violating” multiple statutory provisions. (People v. Britt (2004) 32 Cal.4th 944, 952.) Section 654 bars punishment where, as here, a defendant has been convicted of both a crimethat requires as one ofits elements the intentional commission of an underlying offense and the underlying offenseitself. (People v. Sanchez (2009) 179 Cal.App.4th 1297, 1315.) Where, as here, a defendant has been convicted ofactive participation in a criminalstreet gang and underlying criminal conduct, he can be punished for the 49 underlying criminal conduct but can not be punished separately for gang participation. (/d. at p. 1316; cf. People v. Herrera, supra, 70 Cal.App.4th at p. 1468 [§ 654 never precludes multiple punishment for both gang participation and the underlying felony]; People v. Ferraez (2003) 112 Cal.App.4th 925, 935 [accord]; In re Jose P. (2003) 106 Cal.App.4th 458, 470-471 [accord].) Here, the jury wasinstructed that “[f]elonious criminal conduct includes Penal Code Section 664/211.” (1 CT 140 [CALJIC No. 6.50.) The only waythe jury could have found appellant guilty of active gang participation was to find he committed the underlying offense of attempted robbery, as to which he wasalso sentenced. Appellant cannot be separately punished for gangparticipation given the sentence for attempted robbery. Were this Court to reverse the Court of Appeal’s decision, this Court should remand the case to the Court of Appeal for consideration of the section 654 issue. 50 CONCLUSION For the reasons given herein, this Court should affirm the decision of the Court of Appeal. In the alternative, if this Court reverses the decision, this Court should nonetheless remand the matter to the Court ofAppeal for considerationin the first instance of the sentencing issue on the gang participation conviction. Date: May 16, 2011 Respectfully submitted, /s/ Diane Nichols Attorney for Defendant and Appellant 51 CERTIFICATION OF WORD COUNT Pursuant to California Rules of Court, rule 8.520(c)(1), I hereby certify the number of words in Appellant’s Answer Brief on the Merits is 11,932, based on the calculation of the computer program used to prepare this brief. The applicable word-countlimit is 14,000. Dated: May 16, 2011 /s/ Diane Nichols 52 DECLARATIONOF SERVICE PEOPLE OF THE STATE OF CALIFORNIA SUPREME COURTNO. 8187680 v. JOE RODRIGUEZ,JR. COURT OF APPEAL NO. C060227 The undersigned declares: I am an attorney duly licensed to practice in the State of California and am nota party to the subject cause. My business addressis P.O. Box 2194, Grass Valley, California 95945-2194. I served the attached APPELLANT’S ANSWERBRIEF ON THE MERITSbyplacing a true and correct copy thereof in a separate envelope for each addressee namedhereafter, addressed as follows: Court ofAppeal Office of the Attorney General Third Appellate District 1300 I Street 621 Capitol Mall, 10th Floor P.O. Box 944255 Sacramento CA 95814-4719 Sacramento CA 94244 Yuba County Superior Court Central California Appellate Program FOR DELIVERY TO: 2407 J Street, Suite 301 Hon. James L. Curry Sacramento CA 95816-4736 215 Fifth Street, Suite 200 Marysville CA 95901 Joe Rodriguez,Jr. P-70505 P.O. Box 107 Tehachapi CA 93581 Each envelope was then sealed and with the postage thereon fully prepaid deposited in the United States mail by me at Grass Valley, California on May 16, 2011. I declare underpenalty ofperjury that the foregoing is true and correct and that this declaration was executed at Grass Valley, California on May 16, 2011. /s/ Diane Nichols