PEOPLE v. RODRIGUEZ

Respondent's Opening Brief on the Merits

Cal.March 15, 2011

~ tia - ) gn the Suprenv Court of the State of Caltfornia Led F y r h e , THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Case No. 5187680 v. SUPREME COURT JOE RODRIGUEZ,JR., | F | Li: iD Defendant and Appellant. MAR i 204 Third Appellate District, Case No. C060227 Frederick K. Oninich Gren Yuba County Superior Court, Case No. CRF07288- The Honorable James L. Curry, Judge RESPONDENT’S OPENING BRIEF ON THE MERITS KAMALA D. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General MICHAEL P. FARRELL Senior Assistant Attorney General CHARLES A. FRENCH Supervising Deputy Attorney General BROOK BENNIGSON Deputy Attorney General State Bar No. 184203 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 327-5687 Fax: (916) 324-2960 Email: Brook.Bennigson@doj.ca.gov Attorneysfor Plaintiffand Respondent TABLE OF CONTENTS Page Issue Presented .........ccccccccssesssccensesseeseseeeeeseseecessseeessseesteestinerseeeerrsseserereaeesneees 1 TntrOductiOn.......cccccccecccccesesssccssecessceessneeersrseeesssecsssasensesnseesnreeserieeeeseesesesaeees 1 Statement of the Case ........ccccccccccceesecesseesseeeneeeseeeeeensesneeteeeeraeseeeeeneneeneees 2 Summary Of Argument ........cccceceseneeeeeeectenereterereetseseessessssesescnseenesserenacanes 12 ALQUMENL 0... eeeecceeeceseseeanseseeneneeeeeeenseserersnesseerasesasseensrsntacasnsasnaneesnsessists 14 I. Section 186.22(a) applies to an active participant who, acting alone,is the direct perpetrator of felonious criminal CONGUCE 0... cceeee eee e terete eeseeeeerteettneetteeeeeteeenneees 14 A. Section 186.22(a).......ccccceccesceeeseseseeretneeeeeneeeeeeeneees 14 B. Relevant case law ou... ccccccseseseesreesesrreeeernneeertaeeswed C, The majority’s decision and the flaws therein.......... 25 1. The majority relies significantly on dictum in Castendda.......cccccccccccersrere rien26 2. The majority misreads the facts of CASTCNAG .oececccccccccccecertee tenet tie eeeereeeeenneeestneens 35 3. The majority incorrectly concludes that “TiJt makes no sense to say that a person has promoted or furthered his own criminal CONGUCt”....... ee eee eee eneeeeeeeeeeeeetees 37 4, The majority’s interpretation of the statue leads to absurd results ............ceee4} 5, The majority’s interpretation is inconsistent with the Legislature’s intent in enacting section 186.22(a) «0...44 CONCIUSION ...ccccccccceceecccseeeeecsceecseeneeceseneeeeenseeeeseeeeeaeenseesnaecneeeeeeenaaeeeesaeesneae 47 TABLE OF AUTHORITIES Page CASES Chicago v. Morales (1999) 527 U.S. 4 oececceccceceeteetes neces reins rencsneensseetesneesenanenennserensensanenseneness 17 People v. Albillar (2010) 51 Cal4th 47ccceenenerereerenesneesseeensenenenensereasscarenenceys passim People v. Cabrera (2010) 191 Cal App.4th 276.0...cececes ecnereneneneentnecsenessetiresseneeens passim People v. Castenada (2000) 23 Cal 4th 743 ...ccceeecne teense ceerseeeeneenenerersecasseereenen passim People v. Gardeley (1996) 14 Cal.4th 6052.eresssesreseeseeessieneensersencessnsesnessrictag 32 People v. Hernandez (2004) 33 Cal. 4th 1040...eeeieee eeeeres esses scnssneeententernssrsneeseesnesaay 14 People v. Herrera, (1999) 70 Cal.App.4th 1456...cscs ecrececec eens sesnerscenseseneesesseestisga 45 People v. Loeun (1997) 17 Cal4th Les ceececcececcesene rect tenes reserecseeseessersnsesenteneeneneastesesnesnartcgy 33 People v. Martinez (2008) 158 Cal-App.4th 1324... cceeceeeneeeresieseestesnerersenernensensersesensessenega 5 People v. Ngoun - (2001) 88 Cal .App.4th 432 oeeeeeses seers seseeenenererseeneneneneasreenenens passim People v. Robles (2000) 23 Cal.4th 1106...ressessersssaeriseeenenerisnserseaseesesenseneensngey 19 People v. Salcido (2007) 149 CalApp.4th 356...ccceeeee ienenene rete sseeesineentigs passim People v. Sanchez (2009) 179 Cal.App.4th 1297cessesresents rset cseeeree rene passim it Porter v. Superior Court (2009) 47 Cal.4th 125 oo. ecceecceecsececseeeereerneesseesesescsseseesseseesassaretereeeeees 6 Scales v. United States (1961) 367 US. 203 oooccceeccceeeeeeceserenecteeeeeenseteeeersessesesnasnesnesereseeeneey 16, 17 Shelton v. City of Westminster : (1982) 138 CalApp.3d 610 oo.ccec cesses ceeeeneerersenestecnersessgeseeseseesrarens 45 STATUTES Penal Code § 86.22, SUDA. (fl... ccccceeceeece teers eneeeeetesseessssescesecsescnssaenecsevseceeaseesentnenes 33 § 186.20 et SOQ. cccsee ceene esse ers este teensecnarseensenectscnesiesiesesneseenatenerneesy 41 § 186.21 cc ccccccceeeeceeeeeeneeeereeceseseseeesseesesecseessensesessensenseetieeratens 13, 41, 45 § 86.22 ccccccecececsereeseeeecneessenenesneeersesesssessseessscsenscseecssneesesseenenertesereneens 12 § 186.22, SUB. (a) oo. c cece cect ceetecseeseetetnececneeeneretaetenennensrevecserernseney passim § 186.22, Sub. (D) occeee ence cts eerereeeeseeseesecassenseneesssenssieeaesnesserienaseneas 24 § 186.22, subd. (D)(1) oeeeece erie eee ern eeernerneceeceeesneeer ster rneneenees passim § 186.22, SUB. (1).eee eee cece eneneneensennesesenensenenenerssieneneteneeeneseesinieess 19 § 186.22, subd. (fp.eeeeee cserseeeeseeeenessersesessneneseeesiereesesersenersegenes 33 § 209, SUB. (2) .oeeeeeeceeceee eect eeereerceneeseeesenassessenesteneresnesienernertetnetseraeretens 45 SQV cccccccccceceeseeseceeeseceedeeessseeecseeseeeseesescecsecsecasnecseensepserenerenereeeegens 1,3,4 § QVQS occcccccceeeec ene eeeseneeneseeeesceessessssseeestestenseenssessieessintiereeensiereeneneeressens 4 § 215, SUbA. (8) .eeceecececeeeeeeecteescnetecseseseeeassenecsensseessienenesseretseracisesenenesseens 33 § 496d, subd. (a).........veveecuecceseeesenssesseeneeecseeeeectesteseeesueenseereeesensesenestieegs 2) § 664 ooccccccccccctecsecceesetectecneeeeesesevessseseseasereascasnestecssnenseterseneenegeesiersenesees 1,3 § 667.5, SUD. (D) occ cccreneeccnersesesceeneersenenecsetsnsesasieneeensnsereserecenersenntes 4 § 667, Subds. (D)-(i) occeeereer eneeeectetereeneresieenenerieneresnesienesesnessenstias 4 § LLBeeeteen ttre rrrnenieess Lecesceceseeeseccseseseeeseeeteaeeeneeseatensas 6, 8 § 1170.12, subds. (a)-(d).. ceceeeeec enecnestesreenetee eienieenesinreennneeneeas 4 SVSDcceececeeeeeeeeeeneesseesserecseneessetecastensstseisnesisisnetiesnensssntesseersers 4 § 1181, SUBD. 6...cece cee ee eee ener tetteeesetasnasnecsenevsseeeteneenesnacieraenrnennas 1,4 § 12020, subd. (€)(1)... ce ceeeecsseeeseeeseeneesecneneerenerscaeeeeerevsenteaeeaeiessesenersenas 21 § 12020, subd. (a)(4).... ce ceceeeeceseetenseercnseneesscecseneessneesenerierseveseseeseeeneegs 21 § 12025, subd. (€)(1)... ce ecceeeseceeseeeeceseecseneneeseeesseseaseeresseseraesaeseseenaeneesgs 21 § 12031, subd. (ay(L)... ce eeeecceseeescteesccereecesensenessetesssnerseneriesnreereereenenseens 21 OTHER AUTHORITIES Assembly Bill NO. 2013: .ceccccccseceseccscesceneeeeeenecseeesesevsessesneecsesseseaessessenesnscaeseesnaeeareneersensenses 16 CALCRIM NO. 1400 voocccccccececsccsceeeeeceeereesneeesnseneeseeseseseesseecesesssserseestrerteeeseeeeenees passim NO, 140] occccceccceeecseecneeeereneeseeessssaeeceseseenseessesectieereeeeesnieeerentesepeny 32 il CALJIC NO. 6.50 vccccccccscccscecsceseesseececeserseceetseesseevseesseeersensestesnectirernegens 21, 22, 23, 25 NO. 1724.2 coccecccccessccecceeeeceseesteesteereneeeseseessaeesceesseesaseneeesnaesertiesseeesneeenneee 32 Legislature Counsel’s Digest, Assembly Bill No. 2013 (1987-1988 Regular Session) Statutes 1988, Chapter. 1242.0... eesecesseteeeeeeneteneeees 45 iv ISSUE PRESENTED Can a person whoactively participates in any criminalstreet gang with knowledgethat its members engagein or have engagedin pattern of criminal gangactivity be guilty of violating Penal Code! section 186.22, subdivision (a)-activeparticipation in a criminal street gang-whenhe or she, acting alone, is the direct perpetrator of felonious criminal conduct? INTRODUCTION A jury convicted appellant of being an active participantin a criminal street gang (§ 186.22, subd. (a) [hereinafter “§ 186.22(a)”] and attempted robbery (§§ 664/211), and foundtrue the allegation that the attempted robbery was committed for the benefit of the gang (§ 186.22, subd. (b)(1) [hereinafter “§186.22(b)(1)”]. Prior to sentencing, the trial court granted appellant’s motion for a new trial pursuantto section 1181, subdivision 6 on the § 186.22(b)(1) gang allegation and the prosecutor elected notto retry the allegation. Appellant was then sentenced tostate prison. Appellant appealed to the Third District Court of Appeal. Two justices ofthe three justice panel reversed appellant’s conviction for active participation in a criminalstreet gang (§ 186.22(a)), finding that the crime does not apply to an active participant in a criminal street gang (“active participant”)” whois the sole perpetrator of felonious criminal conduct. In reaching their conclusion, the majority disagreed with three published court of appealcases that had reached the opposite conclusion (People v. Ngoun (2001) 88 Cal.App.4th 432, review denied July 7, 2001, S097592 (“Ngoun”); People v. Salcido (2007) 149 Cal.App.4th 356, review denied ' All further undesignated statutory references are to the Penal Code. * Throughoutthis brief, respondentwill use the shorthand “active participant” to refer to a person who“actively participates in any criminal street gang with knowledgethat its members engage in or have engaged in a pattern of criminal gang activity.” July 11, 2007, S152686 (“Salcido”); People v. Sanchez (2009) 179 Cal.App.4th 1297, 1301-1308, review denied March 10, 2010, $179000 (“Sanchez”)). The dissenting justice disagreed with the majority’s conclusion and believed the published cases previously addressing the issue were correctly decided. The majority’s decision shouldberejected. In reachingits conclusion, the majority: treats dictum in People v. Castenada (2000) 23 Cal.4th 743 (““Castenada”) as binding; misreads the facts of Castenada; incorrectly concludes that “It makes no sense to say that a person has promoted or furthered his own criminal conduct”; and adoptsan interpretation that leads to absurd results which are inconsistent with the Legislature’s intent in enacting section 186.22(a). STATEMENT OF THE CASE Appellant, an active participant in the Nortefo street gang,’ attempted to rob the victim while visiting his sister in Marysville. The facts surrounding offense, which, unless otherwise indicated, are taken from the majority’s decision, are summarized as follows: On May 10, 2007, the victim, Stanley Olsen, stepped out of his truck and onto the street. He heard a person behind him say somethingthat he did notfully hear. He turned and saw appellant, whom he did not recognize, coming up to him. Olsen asked appellant if he knew him, and appellant said, “You eye fuck me, nigger, and Ill kill you.” (J RT’ 138.) 3 As notedbythe dissent, “there is no dispute that substantial evidence supports the conclusion [appellant] actively participated in a criminal street gang (the Nortefios) with knowledge that its members engage in a pattern of criminal gangactivity.” (Dis. opn. of Sims, J. at pp. 2-3.) *“RT”refers to the Reporter’s Transcript. Olsen stood his ground and appellant came up to him so that the two men’s chests were touching. Appellant then demanded moneyfrom Olson, saying “‘Give me your fucking money,’”and telling him he would “fuck {him} up.” (1 RT 138.) Olson told appellant he “didn’t have time for this” and said appellant “needed to get away from” him. Appellant then punched Olson in the jaw and the two men wentto the ground and fought. Olson wasable to get up, and appellant fled to an apartment where he waslater found hiding under a bed andarrested. During the booking process, appellant admitted he was an active member of the Nortefio gang. He hadthe word “northern”tattooed on the back ofhis left triceps and the word “warrior” on his right. ( RT 189-190, 238.) He had theletter ‘““N” with the number “1” on oneside and the number“4”tattooed on his chest, along with the phrase “Only God can judge me,” an Aztec warrior, and skulls-all symbols associated with the Nortefio gang. (1 RT 189, 191-193.) Across his back, he hadhis last name tattooed in red and black ink--his gang’s colors. (1 RT 191-192, 238.) He also had red shoelaces in his shoes and was wearing a black belt. (1 RT 238, 242; 2 RT 329, 353-355.) Two gangexperts testified that robbery, among other crimes, was a primary activity of the Nortefio gang, and-based on a hypothetical mirroring the facts of the case-both opinedthat the attempted robbery of. Olson was committed for the benefit of the gang. (1 RT 196-201; 2 RT 356-364.) A jury found appellant guilty of attempted robbery (Count 1; §§ 664/211) and being an active participant in a criminal street gang (Count3; § 186.22(a)) and foundtrue the allegation that the attempted robbery was committed for the benefit of a criminal street gang (§ 186.22(b)(1)).° (i CT® 118, 127-129; maj. opn. of Blease, J.’ at pp. 2-3.) The court found true the allegations that appellant had suffered a prior “strike” conviction (§ 667, subds. (b)-(i) and § 1170.12, subds. (a)-(d))}-specifically, a 2000 robbery conviction (§§ 211/212.5)-and had served a prior prison term (§ 667.5, subd. (b)).® (1 CT 40-43, 119; maj. opn.at p. 3, fn. 3.) Prior to sentencing, appellant retained new counsel whofiled a new trial motion pursuant to section 118], subdivision 6.” (1 CT 145, 151-180; maj. opn.at p. 3.) In the motion, appellant made two arguments, the first of which wasthat “The Prosecution Failed to Prove the Gang Enhancement By Substantial Evidence.”'” (1 CT 158-174.) Appellant argued his motion should be granted because there was insufficient evidence to support the “‘Criminal Street Gang’ component”ofthe enhancement (1 CT 159-164) > Count 2 of the amended information charged appellant with assaulting the victim with a deadly weapon. (1 CT 41.) The court granted the prosecutor’s motion to dismiss this count prior to the jury being sworn, and trial proceeded on Counts I and 3. (1 CT 105.) ° “CT”refers to the Clerk’s Transcript. 7 Burther citations to the majority’s opinion will be designated “maj. opn.” 8 Appellant waivedhisright to a jury trial on these allegations. (i CT 113.) ® Section 1181 providesin pertinentpart as follows: Whena verdict has been rendered ora finding made againstthe defendant, the court may, uponhis application, grant a newtrial, in the following cases only: [s].--11 6. Whenthe verdict or finding is contrary to law or evidence... . '© Appellant’s second argument, whichis not relevant to the issue before the Court, was that: “Defendant Received Constitutionally Ineffective Assistance of Counsel.” (1 CT 174-178.) and to showthat the attempted robbery was “Committed for the Benefit of, and With the Specific Intent to Promote the Gang.”"! (1 CT 164-173.) Appellant also argued that “The [gang] Expert’s Opinion Testimony Constituted Improper Profile Evidence Which does not Amountto Substantial Evidence Supporting the Gang Enhancement,” and concluded that “[fJor all the reasonsstated, the gang enhancementfinding mustbeset aside.” (1 CT 173-174.) The prosecutor addressed these argumentsin his response (1 CT 183-208), and appellant addressed the prosecutor’s responsein his reply (1 CT 210-215). Appellant did not move for a new trial on Count 3 (§ 186.22(a))."” On August 21, 2008, the motion was heard. (2 RT 500-502.) Without argumentfrom either side, the court granted appellant’s motion for newtrial on the section 186.22(b)(1) gang allegation alleged with Count1, stating that: The Court’s convinced there is insufficient evidence for that finding to stand. It’s beyond a reasonable doubt that [appellant] 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 connectsit to the activities of the gang other than the expert’s statementthat robbery is oneof the crimes Nortefios commit. Thecasesthat I’ve read say there’s got to be something more than gang membership and/or association. '! These are both components of the 186.22(b)(1) gang enhancement, not the substantive crimeofactive participation set forth in section 186.22(a). (See People v. Martinez (2008) 158 Cal.App.4th 1324, 1334.) Even if appellant’s motion could somehow be construed to apply to his section 186.22(a) conviction, at no time did he argue that a newtrial should be granted with regard to that count because section 186.22(a) does not apply to an active participantwho, when actingalone,is the direct perpetrator of felonious criminal conduct. In this case, we have no evidencethat the area where the crime was committed had anything to do with gangterritory, gang turf. There was speculation from the experts that maybe [appellant’s] tattoosat least, in part, may have been visible, although the victim saw no tattoos. 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 [appellant’s] motion for a new trial as to the gang enhancement. (2 RT 501.) The court then asked the prosecutor whether he intended to retry the gang allegation and the prosecutor indicated he did not.” 13 Tn its introduction, the majority acknowledges that the trial court granted appellant’s motion for new trial on the enhancement. However, in its analysis of the issue under review,it states that the trial court “dismissed the enhancementallegation for insufficient evidence.” (Maj. opn.at p. 15.) The majority also states that “On appeal [appellant] contendsthis evidentiary hiatus also requiredthe trial court to dismiss his conviction of the substantive, subdivision (a), criminal street gang offense for lack of substantial supporting evidence. ... We agree.” (Maj. opn.at p. 4.) It seems the majority is confusing the granting of a motion for judgment of acquittal for insufficient evidence pursuantto section 1118.1--a motion that was never madein this case---with the granting of a motion for new trial, as the granting of a new trial motion does not constitute a finding of insufficient evidence and cannotresult in dismissal. (Porter v. Superior Court (2009) 47 Cal.4th 125, 132-134.) Rather, a court grants a motion for newtrial whenit finds the verdict is “‘contrary to the ... evidence.” (Id.at p. 133.) “In doingso, the judge acts as a 13th juror whois a ‘holdout’ for acquittal. Thus, the granting of a section | 181(6) motion is the equivalent of a mistrial caused by a hung jury.” (/bid.) It is not equivalent to a finding of insufficient evidence under section 1118.1, is not an acquittal, and doe s not bar retrial on double jeopardy grounds. (/bid.) Further, a court does not, and indeed cannot, “dismiss” a charge when it grants a newtrial motion. Instead, it has three options. ““(1) It can set aside the verdict o f conviction and grant the defendanta newtrial; (2) it can deny the motion and enter judgment on the verdict reachedby the jury; or (3) it can modify the verdict either to a lesser degree ofthe crime reflected in the jury verdict or to a lesser included offense of that crime as specified by [section 1181(6)].’ [Citation.]” (bid.) (continued...) (2 RT 501-502.) After appellant’s counsel indicated she was prepared to proceed with sentencing, the court sentenced appellant to eight years and four months in state prison. (Maj. opn. at p. 3, fn. 3.) Appellant’s counsel never gave any indication that she had movedfora newtrial on the substantive gang count, did not ask the court whyit did not rule on any such motion, and never soughta final ruling on any such motion. On appeal, appellant claimed “The Trial Court Erred In Failing To Grant A New Trial On Count 3.” (AOB™ 18-26.) In its Respondent’s Brief, the People argued that by not moving for a new trial on Count 3 in the trial court, appellant had forfeited the issue.'> (RB'° 11-16.) Out of an abundanceof caution, respondentalso noted that appellant’s claim could not fairly be construed as the separate, distinct argumentthat there was insufficient evidence to support the conviction, an issue entirely separate (...continued) In this case, the court did not “dismiss[] the enhancementallegation for insufficient evidence.” (Maj. opn. at 15.) Rather, the court, sitting as the “13th juror,” was not “convinced that the charges have been proven beyond a reasonable doubt,” and thus found that the jury’s true finding on the enhancement was, in its opinion, contrary to the evidence. It was the prosecutor whothen elected not to seek to retry the enhancementafter the court granted the new trial motion. (2 RT 501-502.) 14 “AOB”refers to the Appellant’s Opening Brief. '’ The majority misinterpreted respondent’s argumentin this regard. The majority construed respondent’s argumentto bethat appellant was | precluded from challengingthe sufficiency of the evidence supporting his section 186.22(a) conviction because he did not movefor a newtrial on that chargein thetrial court. (Maj. opn. at p. 12-13.) Respondent did not-and would not-makesuch an argument. Respondent argued that appellant’s failure to seek a newtrial on his section 186.22(a) conviction in the trial court precluded him on appeal from challenging the trial court’s non- existent denial of the alleged motion. (RB at 11-16 [see argument heading: “Because Appellant Did Not Move For a New Trial on Count 3 Below,the Court Did Not, and Indeed Could Not, Err in Denying Such a Motion.”].) 16 “RB”refers to the People’s Respondent’s Brief. and apart-and analyzed underdifferent standards-from whetherthetrial court abusedits discretion in denying the alleged new trial motion. (RB 16- 18.) Inhis reply brief, appellant confirmedthat his argument was whathe said it was-thatthe trial court had abusedits discretion whenit denied his alleged new trial motion on Count 3-and acknowledgedthathistrial counsel had done “a very poorjob ofpresenting the issue.” (ARB” 1-2.) Despite the foregoing, the court of appeal construed appellant’s argumentto be that there wasinsufficient evidence to support his conviction because a person cannotbe guilty of violating section 186.22(a) © unless they aid and abet felonious criminal conduct committed by another gang member.'® Aswill be discussed in moredetail post, the two justice '7 “ARB”refers to the Appellant’s Reply Brief. '8 The court of appeal construed appellant’s argumentas follows: “Defendant contends thetrial court should have dismissed his conviction of the substantive gang offense defined by section 186.22, subdivision (a), for insufficiency of the evidence to show that he participated in a felony with other gang members.” (Maj. opn. at 14.) In rejecting respondent’s “argument”that appellant had not even raised a sufficiency of the evidence claim in his opening brief--something appellant confirmed he had not done in his reply brief-the court of appealstated that “(Appellant] clearly argues that the trial court should have ‘dismissed the charge’ for insufficient evidence.” (Maj. opn. at 13-14.) The opinion appears to quote from sub-heading “C” ofappellant’s opening brief in which he stated, “The Court Should Have Granted a New Trial on Count IfI and Dismissedthe Charge[.]” (AOB 22.) The court of appeal suggests the phrase “Dismissed the Charge”in this heading “suffices to apprise us of [appellant’s] contention and his analysis of the evidence adducedattrial.” (Maj. opn.at 14.) The court of appeal reached this conclusion despite the fact that appellant: did not movefor entry ofjudgment of acquittal for insufficient evidence pursuantto section 1118.1 on the substantive gang count; never ‘movedfor a newtrial on the substantive gangcount; argued in his newtrial motion that there was insufficient evidence to support elements of the gang enhancementthat are not containedin the substantive gang crime; did not arguein either his new trial motion or his openingbrief that section 186.22(a) cannotbe violated whenan active participant, acting alone, is the (continued...) majority agreed with their interpretation of appellant’s “argument,”finding that the crime does not apply to an active participant who isthe sole perpetrator of felonious criminal conduct. In reaching their conclusion, the majority found that Ngoun, supra, 88 Cal.App.4th 432, Salcido, supra, 149 Cal.App.4th 356, andSanchez, supra, 179 Cal.App.4th 1297, 1301-1308, were all wrongly decided. In so doing, the majority concluded that Castenada-acase in which this Court »!9 in sectionaddressed the meaningofthe phrase “actively participates 186.22(a)-had correctly interpreted the language in section 186.22(a) to mean that one must aid and abet felonious criminal conduct in order to be guilty of violating the section. It found that the court in Ngoun “wholly misse[d] . . . the grammarofthestatute”in its analysis, and opined that the CALCRIM drafters erred in amending CALCRIM No.1400to include liability for those whodirectly commit a felony. The majority basedits . conclusion ona literal, plural reading of the word “members[,]” finding that the statute “requires perforce that there be more than one participant[,]” and stating that “[i]t makes no sense to say that a person has promotedor furthered his own criminal conduct.’”’ (Maj. opn.at p. 5.) In addition, faced with the facts in Castenada, which involved two co- perpetrators committing a robbery in concert, and in seeming contradiction (...continued) direct perpetrator of felonious criminal conduct; did not oncecite to Castenada, supra, 23 Cal.4th 743, the case the majority twice characterized as “the leading case” on the issue (maj. opn.at 4, 18); did notcite to Sanchez, supra, 179 Cal.App.4th 1297, 1301-1308, did not mention that Sanchez, Ngoun, supra, 88 Cal.App.4th 432, and Salcido, supra, 149 Cal.App.4th 356, hadall rejected the argumentthat an active participant could notbe guilty of violating section 186.22(a) when acting alone; and made no mention of Ngoun, Salcido, and Sanchez being incorrectly decided. '? A phrase notat issue here. to its conclusion that section 186.22(a) only applies to aiders and abettors, the majority found “that perpetrators may come within the language of section 186.22(a).” (Maj. opn.at p. 21.) This is true, the majority concluded, becausethe facts of “Castenada do[] not rule out perpetrators whoact in criminal conduct with other gang members[,]” and because “? Elsewhere described as gang members. (Castenada, supra, 23 Cal.4th at p. 753.) 35 (Maj. opn.at p. 22.) However, in Castenada, the people accompanying Castenada are referred to as “two companions.” (Castenada, supra, 23 Cal.4th at p. 745.) At page 753 of Castenada-the page the majority cites for its statement that Castenada’s companions were “[e]lsewhere described as gang members|]” (maj. opn.at p. 22, fn. 11)-this Court said that Castenada was “armed with a handgun andin the company of two others.” (Castenada, supra, 23 Cal.4th at p. 753.) While this Court noted that the gang expert “described the crimeastypical of those committed by Goldenwest gang membersto put local residents on notice of the gang’s control of the neighborhood[]” (ibid. ), nowhere did the opinion say the two unidentified companions were gang members. | Because the evidence in Castenada did not establish that Castenada wasacting in concert with gang members,the facts of that case do not support the majority’s finding that it is only when a gang memberacts in concert with another gang memberthat liability under section 186.22(a) attaches. Indeed, what the facts establish, if anything, is that a gang member who undertakes in felonious criminal conduct while acting in concert with a person whohasnot been identified as a gang memberis guilty of violating section 186.22(a) as Sanchez found. Further, the Ngoun court correctly relied on the facts of Castenada to support their decision, stating that: Indirect support for our view is found in the case law. Several reported opinions have involved a defendant convicted both as a perpetrator of a substantive felony and as a gang member under section 186.22, subdivision (a) based upon the same felony. In People v. Herrera, supra, 70 Cal.App.4th 1456, the defendant wasconvicted of murderas the perpetrator and also of a violation of section 186.22, subdivision (a) based upon the murder, Similar dual convictions were involved in People v. Castenada, supra, 23 Cal.4th 743, People v. Funes (1994) 23 Cal.App.4th 1506, 1516; and People v. Smith (1993) 21 36 Cal.App.4th 342. Although we recognize that the contention advanced by appellant here wasnot raised in any of these cases, all of these convictions were affirmed without mention ofthe issue. (Ngoun, supra, 88 Cal.App.4th at p. 437, parallel citations omitted.)*° As the foregoing makesclear, the majority has misread the facts of - Castenada,the facts of which actually support the holdings of the dissent _ and the other courts of appeal to have considered the issue. 3. The majority incorrectly concludes that “[iJt makesnosenseto say that a person has promoted or furthered his own criminal conduct” In large part, the majority’s argument comes downto its statement that, “[i]t makes no sense to say that a person has promoted or furthered his owncriminal conduct.” (Maj. opn.at p. 5.) However, as explained by the Ngoun court when first addressing the issue: Given the objective and intent of subdivision (a), we find good reasons notto construe section 186.22[(a)], in the restricted manner advocated by appellant and instead to concludethat this subdivision applies to the perpetrator of felonious gang-related criminal conduct as well as to the aider and abettor. Courts should give statutory words their plain or literal meaning unless that meaningis inconsistent with the legislative intent apparent in the statute. [Citations.] Under the language of subdivision (a), liability attaches to a gang member who“willfully promotes, furthers, or assists in any felonious criminal conduct by 33 The Sanchez court disagreed with Ngoun’s characterization of Castenadain this regard, finding that while Castenada wasthe direct perpetrator of the robbery of Venegas, “he was arguably only an aider and abettor to the attempted robbery of Castillo. To put it another way, there was substantialevidence that the defendant had aided and abetted a felony.” (Sanchez, supra, 179 Cal.App.4th at pp. 1306-1307.) While this - may be true, since it was not established that Castenada’s unidentified co- perpetrator was a gang member,the evidence did not establish that Castenada aided or abetted-or was a co-participant to-a felony committed by a memberofhis gang. 37 membersof that gang.” (§ 186.22{(a)].) In commonusage, “promote” meansto contribute to the progress or growth of; “further” meansto help the progress of; and “assist” meansto give aid or support. (Webster’s New College Dict. (1995) pp. 885, 454, 68.) The literal meanings of these critical words squares with the expressed purposes of the lawmakers. An active gang member whodirectly perpetrates a gang-related offense “contributes” to the accomplishmentof the offense no less than does an active gang memberwhoaids and abets or who is otherwise connected to such conduct. (Ngoun, supra, 88 Cal.App.4th at p. 436.) The Ngoun court’s interpretation and explanation of the words “promote” and “further” has-with the exception of the majority--been followed by every court that has addressed the issue as well as the dissent. (Salcido, supra, 149 Cal.App.4th at pp. 367-368; Sanchez, supra, 179 Cal.App.4th at pp. 1306-1307; dis. opn.at p. 7; Cabrera, supra, 191 Cal.App.4th at p. 284.) As accurately noted by the dissent, “[T]he majority are wrong about the meaning of the words “promotes [or] furthers .. . in any felonious criminal conduct.’ Someone can ‘promote’or ‘further’ felonious criminal conduct by committing the offense himself, without the participation or aid of others.” (Dis. opn.at p. 7.) As noted by the Sanchez court, “a gang member whoperpetrates a felony by definition also promotes and furthers that same felony.” (Sanchez, supra, 179 Cal.App.4th at p. 1307.) The majority criticizes Ngoun’s analysis,stating, What Ngoun wholly misses is the grammarofthe statute. The terms “promote[], further[], or assist[]” modify the phrase “felonious criminal conduct by membersofthat gang,” which Castenada saysrefers to “a specific felony committed by gang members... .” (Castenada, supra, 23 Cal.4th. [sic] at p. 749, italics added.) The reference to “by members ofthat gang,” does not refer to the kinds of offenses which the gang may customarilycommit. Thus, to assist in the commission of an offense, i.e., to aid and abet its commission, requires perforce that there be more than one participant. The sameis true of promoting or furthering the criminal conduct of others. It makes 38 no sense to say that a person has promotedor furthered his own criminal conduct. (Maj. opn. at pp. 20-21, fn. omitted.) The majority’s criticism is flawed in manyrespects. First, it is not entirely clear what the majority means when it says that “Ngoun wholly misses the grammarofthe statute.” (Maj. opn. at p. 20.) It seems to suggest that the Ngoun court either mistakenly believedthat the terms “promote[], further[], or assist[]” modify a phrase other than “felonious criminal conduct by members of that gang,”orthatit believed that the phrase “by membersof that gang”referred to the kinds of offenses which the gang may customarily commit. Respondentcan find nothing in the Ngoun opinionto support either of these contentions. A significant part of the majority’s criticism seems to come downto its erroneousbelief that the statute effectively reads, “willfully promotes, furthers, or assists in any felonious criminal conduct by other members of that gang.” (Maj. opn. at p. 5 [““[To] promote[ or] further[] ... felonious criminal conduct by membersof[a] gang’ requires that the perpetrator promote or further a ‘specific felony’ (as Castenada says) of other members of the gang.”’].) In reachingthis erroneous conclusion, the majority begins by citing to Castenada for the proposition that the phrase “felonious criminal conduct by membersofthat gang” means‘a specific felony committed by gang members ....’ (Castenada, supra, 23 Cal.4th. [sic] at p. 749,italics added.)” (Maj. opn.at p. 20.) It then focuses on the term “assist” in section 186.22(a) and concludes that“to assist in the commission of an offense, i.e., to aid and abet its commission, requires perforcethat there be morethat one participant.” (Maj. opn. at pp. 20-21.) The majority is right about the term “assist.” As the dissent notes- and as respondent acknowledged atoral argument-‘Someone does not ‘assist’ himself.” (Dis. opn. at p. 7; maj. opn.at p. 5, fn. 5.) However,the 39 majority goes on to make the unsupported and erroneous conclusionthat, “The sameis true of promoting and furthering the criminal conduct of others. ‘[To] promote[ or] further[] . . . felonious criminal conduct by membersof[a] gang’ requires that the perpetrator promote or further a ‘specific felony’ (as Castenada says) of other membersofthe gang. It makesnosense to say that a person has promoted or furthered his own criminal conduct.” (Maj. opn.at p. 5, italics added; see maj. opn.at p. 21.) The mistakes the majority makes in this regard are twofold. First, section 186.22(a) does not say that one must promote, further, or assist felonious criminal conduct committed by other membersofthe gang. Second, as Ngoun, Salcido, Sanchez, Cabrera and the dissentall correctly conclude, an active participant who is a gang memberand engagesin felonious criminal conduct has promoted and furthered felonious criminal by a memberofthe gang, himself. (Sanchez, supra, 179 Cal.App.4th atp. 1307 [‘‘a gang member whoperpetrates a felony by definition also promotes andfurthers that same felony.”]; dis. opn. at p. 7 [“Someone can ‘promote’or‘further’ felonious criminal conduct by committing the offense himself without the participation of aid or others.”]; Ngoun, supra, 88 Cal.App.4th at p. 436; Cabrera, supra, 191 Cal.App.4th at pp. 284-286 [citing Salcido and the dissent with approval on this point].) Asset forth by the dissent, “Section 7 providesin pertinentpart, ‘words used in [the Penal Code] in the present tense include the future as . well as the present. . . the singular numberinclude the plural, and the plural the singular... .’ Subdivision 16 of section 7 further counsels that ‘Words and phrases must be construed according to the context....’ By these rules, ‘members’ can mean ‘member.’ It should.” (Dis. opn. atp. 4, originalitalics.) Here, appellant promoted and furthered felonious criminal conduct by a memberofthe gang, himself, not members of the gang. However,given the intent of the statute as set forth by the Legislature in 40 section 186.21, “the grammarofsection 186.22(a) does not preclude giving _ the term ‘members’ a singular construction in accordance with the rule of section 7.” (Dis. opn. at p. 8.) “By these rules, ‘members’ can mean ‘member.’ It should.” (Dis. opn.at p. 4.) 4. The majority’s interpretation of the statue leads to absurd results Notonly is the majority wrong about the meaning of the words - “promote” and “further,” but its interpretation ofthe statute leads to absurd results. As noted, section 186.22(a) is a part of the STEP Act (§ 186.20 et seq.). Section 186.21 of that Act provides in pertinentpart: The Legislature . . . finds that the State of California is in a state of crisis which has been caused by violent street gangs whose membersthreaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods. Theseactivities, both individually and collectively, present a clear and present dangerto public order and safety and are not constitutionally protected. The Legislature findsthat there are nearly 600 criminalstreet gangs operating in California, and that the number of gang-related murders is increasing. The Legislature also finds that in Los Angeles County alone there were 328 gang-related murders in 1986, and that gang homicides in 1987 have increased 80 percent over 1986. It is the intent of the Legislature in enacting this chapter to seek the eradication of criminal activity by street gangs by focusing upon patterns of criminal gangactivity and upon the organizednature ofstreet gangs, which together, are the chief sourceof terror created by street gangs. Asnoted bythe dissent, the majority’s interpretation of section 186.22(a) “would preclude a conviction for active participation in a criminal street gang (§ 186.22(a)) wherethe leader of the Nortefios, acting entirely alone, got into his car and drove into Surefio territory, shot and killed several Surefios, and pinned notesto their shirts reading, “Nortefios Rule.’” (Dis. opn. at pp. 5-6.) As the dissent notes, “In light of the purpose 4] of the Street Terrorism Enforcement and Prevention Act... | cannot believe the Legislature intended such an absurdresult. “We must give... the [statutory] provision a reasonable and commonsense interpretation consistent with the apparent purpose and intention of the lawmakers, practical rather than technical in nature, which upon application will result in wise policy rather than mischief or absurdity. [Citation.]’ (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744, quoting Marshall M. v. Superior Court (1999) 75 Cal.App.4th 48, 55.)” (Dis. opn.at p. 6.) The absurdity of the majority’s decision, however, goes even further. Following the dissent’s example, assumethat prior to going on his shooting spree the leader of the Nortefios approachedan active participant, told him ofhis plan, and asked to borrow his gun to carry it out. Under the majority’s interpretation of section 186.22(a), the active participant-who aided and abetted the leader by providing him with his gun-would be guilty of violating section 186.22(a) as he aided and abetted “felonious criminal conduct by membersof that gang.” However, the leader, who was the sole perpetrator of the crime, would not be guilty because hedid not aid or abet felonious criminal conduct by other members of the gang and was not a co-perpetrator acting in concert. This is exactly the point the Ngoun court made. Like the example set forth above, in Ngoun it was “undisputed that, if the evidence proved any criminal conduct by [Ngoun],it was only as the perpetrator of the murder of Kevin Martinez and the assaults on the other unnamedvictims.” (Ngoun, supra, 88 Cal.App.4th atp. 435, originalitalics; see Salcido, supra, 149 Cal.App.4th at p. 367) There was, however, evidence that Ngoun went to the party where the shootings occurred along with fellow gang members and that he was “armedin anticipation of a confrontation and asked a fellow gang memberto ‘watch his back.’” (Ngoun, supra,at p. 437.) Thus, there was evidencethat fellow gang membersaided and abetted Ngoun. 42 (See Sanchez, supra, 179 Cal.App.4th at p. 1307 [The [Ngoun] court’s discussion [ofthe facts] . . . indicates that, while the defendant was the direct perpetrator of murder and. aggravated assault, he was aided and abetted by at least one other gang member.”]; but see Salcido, supra, at p. 368 [“Even though in Ngoun other gang members were present whenthe crimes were committed,it is uncertain whether they participated in the crimes. [Citation.]”].) Because he wasthe sole perpetrator and did notai d or abet anyone, Ngoun argued on appeal that there was“insufficient evidence to support [his] conviction [for violating section 186.22(a)] because there wasno proof [he] aided or abetted a felonious act actually committed by another gang member.” (Ngoun, supra,at p. 434, origi nal italics; see Salcido, supra, at p. 367.) The Ngoun court rejected this argument, pointing out its absurdity given the intent of the statute. The court stated: “An active gang member whodirectly perpetrates a gang-related offense ‘contributes’ to th e accomplishmentofthe offense no less than does an active gang me mber whoaids and abets or whois otherwise connected to such conduct. Faced with the words the legislators chose, we cannotrationally ascribe t o them the intention to deter criminal gangactivity by the palpably irrational meansofexcluding the more culpable andincluding the less culpa ble participant in such activity.” (Ngoun, supra, 88 Cal.App.4th at p. 43 6; see also Salcido, supra, 149 Cal.App.4th at pp. 367-368 [citing Ngoun w ith approvalonthis point]; Sanchez, supra, 179 Cal.App.4th at p. 1306 [same]; dis. opn. at pp. 5-6 [same]; Cabrera, supra, 191 Cal.App.4th at p. 284 [same].) The majority, however, embraces the argument advocated by the defendant in Ngoun. It would reach the absurd result that a gang me mber whois the sole perpetrator of felonious criminal conduct can nev er be 43 found guilty of violating section 186.22(a), while the active participant who aids and abets that gang membercan. This absurd result should not stand. In addition, “[b}y insisting on theliteral, plural definition of ‘members’”(dis. opn. at p. 5), the majority’s reading of the statue leads to the absurd conclusion that an active participant must either aid or abet felonious criminal conduct committed by at least two other gang members or must be a co-perpetrator acting in concert with at least two other gang members. The majority state, “‘[To] promotef or] further[] . ... felonious criminal conduct by membersof[a] gang’ requires that the perpetrator promote or further a ‘specific’ felony (as Castenada says) of other members of the gang. It makes no senseto say that a person has promotedor furthered his own criminal conduct.” (Maj. opn.at p. 5, italics added; see also id. at p. 18 [section 186.22(a) “requires that the defendant promote, further, or assist separate ‘felonious criminal conduct by membersofthat gang,’ the gang in which the defendantis an active participant’, original italics; id. at p. 21.) Given the majority’s conclusion that the term | “members”excludes the person being charged with violating section 186.22(a) and instead refers to other members of the gang, it would appear that a defendant who aided or abetted, or acted in concert with, one other gang member would not be guilty of violating the statue-since he did not aid or abet or act in concert with members-while a defendant whoaided or abetted or acted in concert with two or more gang members would beguilty. This absurd result should not stand. 5. The majority’s interpretation is inconsistent with the Legislature’s intent in enacting section 186.22(a) It is apparent that in enacting section 186.22(a), the Legislature intended to target the activeparticipant who wasthe sole perpetrator of felonious criminal conduct and notjust the active participant who aided or 44 abetted felonious criminal conduct committed by other membersofthe gang. This is clear not only from the Legislative findingsset forth in | section 186.21 which are discussed ante, but from the Legislative Counsel's Digest, a proper source to determine the intent of the Legislature. (Shelton v. City of Westminster (1982) 138 Cal.App.3d 610, 614.) The Digest notes, “Under existing law, there are no provisions which specifically make the commission of criminal offenses by individuals who are membersof street gangs a separate and distinctly punished offense[.}” (Legis. Counsel’s Dig., Assem. Bill No. 2013 (1987-1988 Reg. Sess.) Stats. 1988 ch. 1242.) This statement 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 punishment he or she would receive for the underlying felonious criminal conductitself. There 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. Indeed, if it had intended to limit section 186.22(a) to active participants whoaid or abet a specific felony committed by other membersofthe gang, it would have used the term “aid or abet”-a term it knows how to use-rather than “promote[,] further[,] or assist[].” (See, e.g., § 209, subdivision (a) [Any person who. . . kidnaps. . . another person .. . with intent to hold or detain . . . that person for ransom... or any person whoaidsor abets any such act, is guilty of a felony”].) By using the words “promote[,] further|,] or assist[]” rather than “aid or abet,” as well as using the phrase “felonious criminal conduct” rather than “a felony,”it is clear the Legislature wanted the statute’s reach to be broadso thatit applied to: the direct perpetrator; the aider or abettor; the accessory after the fact (see People v. Herrera (1999) 70 Cal.App.4th 1456, 1467-1468 [section 186.22(a) “would allow convictions against both the person whopulls the trigger in a drive-by murder and the gang member 45 wholater conceals the weapon, even though the latter member never had the specific intent to kill.”]); and to the member who promoted orfurthered “felonious criminal conduct”--rather than a specific felony-bytelling active participants to generally put in work for the gang(i.e., to commit crimes for the gang), but who would not be an aideror abettor to any specific felony committed by the active participants because heor she would neither know whatspecific crimes the active participants were going to commitnor havethe specific intent to aid or abet those particular crimes. Further, the Legislature was aware of Ngoun in 2001 andthe statute was amendedin 2005, 2006, 2009, and 2010. (See West’s 2011 cumulative pocket part to Penal Codesections | to 186.99 (Volume 47) page 238.) Despite these amendments, however, no change was madeto section 186.22(a) in light of the holdings in Ngoun, Salcido, and Sanchez. This indicatesthat those courts properly interpreted section 186.22(a) and the Legislature’s intent in enacting it. Had they not, the Legislature would have presumably amendedthe section to makeit clear it applied only to aiders and abettors or active participants who were co-perpetrators acting in concert with other gang members. 46 CONCLUSION Accordingly, respondent respectfully requests that the court of appeal’s judgmentbe reversed. Dated: March 14, 2011 Respectfully submitted, KAMALAD. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General MICHAELP. FARRELL Senior Assistant Attorney General CHARLESA. FRENCH 7} Supervisthe Députy Alorney General.-~ os BROOK BENNIGSON Deputy Attorney General Attorneys for Plaintiffand Respondent SA201 1300256 31186447.doc 47 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S OPENING BRIEF ON THE MERITSuses a 13-point Times New Romanfont and contains 13,022 words. Dated: March 14,2011 - KAMALA D. HARRIS BROOK BENNIGSON Deputy Attorney General Attorneys for Plaintiffand Respondent DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Rodriguez. No.: 5187680 J declare: I am employedin the Office of the Attorney General, whichis the office of a memberof the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the businesspractice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplacedin the internal mail collection system at the Office of the Attorney Generalis deposited with the United States Postal Service that same day in the ordinary course of business. On March 14, 2011, I served the attached RESPONDENT’S OPENING BRIEF ON THE MERITSbyplacinga true copy thereofenclosedin a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550, addressed as follows: Diane Nichols Honorable Patrick J. McGrath Attorney at Law Yuba County District Attorney P.O. Box 2194 : Courthouse Grass Valley, CA 215 Fifth Street (Attorney for Appellant) Marysville, CA 95901 (2 copies) Clerk of the Superior Court Yuba County Courthouse Court of Appeal, 215 Fifth Street, Suite 200 Third Appellate District Marysville, CA 95901 621 Capitol Mall, 1 0th Floor Sacramento, CA 95814-4719 1 declare under penalty of perjury underthe laws of the State of California the foregoing is true and correct and that this declaration was executed on March 14, 2011, at Sacramento, California. Declarant SA2011300256 31214456.doc