PEOPLE v. JOHNSONAppellant, Corey Ray Johnson, Answer Brief on the MeritsCal.Feb 25, 2013 9202790 ~ SUPREME (tur? FILES FEB 25 2013 ~Mcisuire GlareNO. §202790 Frank A. Mc | Deputy IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA ) ) Plaintiff and Respondent, ) DCA No. F057736 ) VS. ) Kern County ) No. BF122135A-C COREY RAY JOHNSON,et.al. ) ) Defendants and Appellants ) ) APPELLANT JOHNSON'S ANSWERBRIEF ON THE MERITS y SUSAN D. SHORS LAW OFFICES OF SUSAN SHORS 466 GREEN STREET,SUITE 300 SAN FRANCISCO,CA. 94133 (415) 543-9000 email@example.com Attorney for Appellant State Bar #115294 . By Appointment of Court of Appeal NO. $202790 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA ) ) ; Plaintiff and Respondent, ) DCA No. F057736 ) Vs. ) Kern County ) No. BF122135A-C COREY RAY JOHNSON,et.al. ) ) Defendants and Appellants ) ) APPELLANT JOHNSON'S ANSWERBRIEF ON THE MERITS SUSAN D. SHORS LAW OFFICES OF SUSAN SHORS 466 GREEN STREET, SUITE 300 SAN FRANCISCO,CA. 94133 (415) 543-9000 firstname.lastname@example.org Attorney for Appellant State Bar #115294 By Appointment of Court ofAppeal TABLE OF CONTENTS ISSUE PRESENTED... 02... cece cece cece ecec eee. -I- STATEMENT OF THE CASE .......0.00 00000 ccc ceeeeeee eee. -2- ARGUMENT...00.cede b ence cece. -4- I. THE CHARGE OF CONSPIRACY TO VIOLATE THE SUBSTANTIVE STREET GANG PARTICIPATION STATUTE WAS UNCONSTITUTIONALLY VAGUE AND THERE IS NO CRIME IN CALIFORNIA DEFINED BY A CONSPIRACY TO COMMIT A CONSPIRACY-BASED CRIME eecece ce ence eee net e ne en aes -4- A. STANDARD OF REVIEW AND SUMMARY OF ARGUMENT ..................... -4- 1. Standard ofReview .................Lees ~4- 2. Summary ofArgument ..............0..--. -5- B. THE COURT OF APPEAL OPINION ............. -6- C. THE CHARGED CRIME OF CONSPIRING TO COMMIT THE SUBSTANTIVE STREET GANG CRIME WAS UNCONSTITUTIONALLY DUPLICATIVE AND VAGUE ............... -9- NOTICE OF JOINDER AND CONCLUSION ................... -16- CERTIFICATION OF WORD COUNT ......................., -17- TABLE OF AUTHORITIES FEDERAL CASES Krulewitch v. United States (1949) 336 U.S. 440 ................. -14- CALIFORNIA CASES Babalola v. Superior Court (People) (2011) 192 Cal.App.4th 948 .... -5- People v. Rodriguez (2012) 55 Cal.4th 1125.................... -10- Williams v. Garcetti (1993) 5 Cal.4th 561...................... -11- STATUTES Penal Code §182 2.0...ccc ccc cece cccee ee. -l-, -6- Penal Code §182.5 18.104.22.168... 000000 eee ee.ee -11-, -12- Penal Code §184 cccc cece cece. -7- Penal Code §186.22 0.00... cece cece cece es 1-, -6-, -9- Penal Code §1259 2.0.cccc cce cece eee. -5-, -6- TREATISES/JOURNALS Alexander & Kessler, Mens Rea and Inchoate Crimes JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY, Vol. 87 0.0.00 ee. -14-, -15- SUSAN D. SHORS ATTORNEY ATLAW 466 GREEN STREET,SUITE 300 SAN FRANCISCO, CA 94133 (415) 543-9000 State Bar #115294 Counsel for Appellant Johnson email@example.com NO. 8202790 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA ) ) Plaintiff and Respondent, ) DCA No. F057736 ) VS. ) Kern County ) No. BF122135A-C COREY RAY JOHNSON,et.al. ) ) Defendants and Appellants ) ) APPELLANT JOHNSON'S ANSWERBRIEF ON THE MERITS ISSUE PRESENTED 1. Whether the Court ofAppeal correctly held there can be no crime of conspiracy to committhe offense of active participation in a criminal street gang in violation of Penal Codesections 182 and 186.22, subdivision (a).! ‘All subsequent statutory references are to the Penal Code unless otherwise indicated. -l- STATEMENT OF THE CASE This Court granted review ofa partially published decision by the California Court of Appeal, Fifth Appellate District, reversing in part and affirmingin part the judgmentofthe Superior Court of Kern County,Judge Gary Friedman. Appellant was convicted byajury of three counts of attempted murder, three counts of special circumstances murder, shooting at an occupied vehicle, conspiracy, and active gang participation, with enhancementsfor firearm discharge and gang benefit. (I-CT at 1-27; [IX-CT at 2521, 2529-2602.) The charges arose from a series of shootings in Bakersfield from March through August 2007 in separate incidents. Edwin McGowanwasinjured in a “walk-up” shooting on Inyo and Monterey Streets in the Canal area. (XIV-RT 2079, 2083, 2115; XVI-RT 2356, 2370.) Multiple shots were fired at a blue and white van on Deborah Street. (XII-RT 1907-1911.) James Wallace, Vanessa Acala and her fetus were killed in a walk-up shooting on McNew Court. (XVI-RT 2535-2537, 2800- 2804, 2816, 2819, 2889; XXIII-RT 4009.) Adrian Bonner was injured in a shooting as hesat in his car at a red light on South Real Road. (XXVII-RT 4684-4687.) Police officers testified thatall three defendants were active members of the Country BoyCripsstreet gang. (LV-RT9961-10029.) Appellant was sentenced to three termsoflife without parole plus 196 yearstolife in prison. (X-CTat 281 1-2818, 2837-2840; LXII-RT 11640-11653.) On April 26, 2012, the Court of Appealreversed the judgment on countnine as based upon conspiracy to commit and to participate actively in a criminalstreet gang. The Court of Appeal modified the sentence on the three attempted murder counts to a determinate term of seven years in prison on each count, exclusive of any enhancements. The Court ofAppeal directed the trial court to amend the sentencing minutes andabstract of judgmentto include the notation that liability for victim restitution imposed pursuantto section 1202.4, subdivision (f) is joint and several. The remainderofthe judgment wasaffirmed. Appellants’ petition for rehearing was denied May 24, 2012. This court granted respondent’s petition for review on August 8, 2012. ARGUMENT I, THE CHARGE OF CONSPIRACY TO VIOLATE THE SUBSTANTIVE STREET GANG PARTICIPATION STATUTE WAS UNCONSTITUTIONALLY VAGUE AND THERE IS NO CRIME IN CALIFORNIA DEFINED BY A CONSPIRACY TO COMMIT A CONSPIRACY-BASED CRIME A. STANDARD OF REVIEW AND SUMMARYOF ARGUMENT I. Standard ofReview The standard of review has been succinctly stated by Presiding Justice Perluss: Issues ofstatutory interpretation are questions of law subject to our independentor de novoreview. (In re Tobacco IT Cases (2009) 46 Cal.4th 298, 311, 93 Cal.Rptr.3d 559, 207 P.3d 20; People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432, 101 Cal.Rptr.2d 200, 11 P.3d 956; see California Veterinary Medical Assn.v. City of West Hollywood (2007) 152 Cal.App.4th 536, 546, 61 Cal.Rptr.3d 318.) " The fundamentalpurpose of statutory constructionis to ascertain the intent of the lawmakersso asto effectuate the purposeofthe law. [Citations.] In order to determine this intent, we begin by examining the languageofthe statute. [Citations.] But‘ [i]t is a settled principle of statutory interpretation that languageofa statute should not be given a literal meaning if doing so wouldresult in absurd consequences which the Legislature did not intend.’ [Citations.] Thus,‘ [t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.’ [Citation.] Finally, we do not construestatutes in isolation, but rather read every statute ‘ with referenceto the entire scheme of law of whichit is part so that the whole may -4- be harmonized andretain effectiveness.’ " (People v. Pieters (1991) 52 Cal.3d 894, 898— 899, 276 Cal.Rptr. 918, 802 P.2d 420.) (Babalola v. Superior Court (People) (2011) 192 Cal.App.4th 948, 956; see generally §1259.) 2. Summary ofArgument The Court ofAppeal held that a charge of conspiracy to commit the substantive gang participation crime defined by section 186.22, subdivision (a) waslegislatively invalid and unconstitutionally vague. (Slip.op at 308- 316.) This Court should upholdthe ruling because the substantive gang crimeis an inchoatecrime,itself effectively prohibiting conspiracy among gang participants, and a charge of conspiring to commit a conspiracy is unconstitutionally vague. The redundant charge wasprejudicial and resulted in otherwise inadmissible evidence being presentedto the jury without limitation as to its use. B. THE COURT OF APPEAL OPINION After setting forth the elements of conspiracy undersection 182 and the substantive street gang crime ofsection 186.22, subdivision (a), the Court ofAppeal pointed out that before one can actively participate in a Street gang, the gangitself must already exist, as defined by section 186.22, subdivision (f). The court emphasized the requirementthat a gang be three or more persons whoindividually or collectively engage in or have engaged in a pattern ofcriminal gang activity. (Typed opinionat 31 1.) Thelisted gang crime must be one of the group’s chiefactivities, not just a crime committed occasionally. Although section 186.22 does not expressly require that there be an agreement to commit a listed gang crime, “we fail to see how there could be an organization, association, or group ofindividuals havingasone ofits chiefor principal occupations the commission of one or more of these crimes, without at least a tacit, mutual understanding that committing such crime(s) is the group’s common purposeandthatits members will work together to accomplish that shared design.” (Typed opinion at 312.) The Court of Appeal emphasized that because mere membership in a group cannotbe penalized, the substantive street gang crime requires a -6- defendant’s active participation with the knowledgethat the members commit specified crimes. (Typed opinion at 3 12.) This serves a purpose similar to that of the overt act requirement in conspiracy undersection 184. (Typed opinion at 312.) Both gangs and conspiracies pose a greater danger to the public than does anindividual perpetrator. (Typed opinion at 312 at fn. 160.) Forthis reason, the Court of Appeal concludedthat “a criminal Street gangis, at its core, a form of conspiracy.” (Typed opinion at 312.) As such, charging a defendant with a conspiracy to commit a gang crime was essentially a charge of conspiracy to commit a conspiracy. (Typed opinion at 313.) Nootherpublishedcase reflects such a charge. (Typed opinionat 313.) The Court ofAppealnotedthat the federal RICO statutes provide for the crime of conspiring to commit a racketeering crime underthat act, which seemsto be as redundantas conspiring to commit the substantive gang crime. (Typed opinionat 313.) Similarly, the federal Smith Act providesfor the crime of conspiring to commit a conspiracy to overthrow the government. (Typed opinion at 3 14.) The Court of Appeal concluded that Congress expressly intendedto allow such redundant federal charges, but that there was no such evidence that the California Legislature so intended underthe general conspiracystatute, section 182. (Typed opinion -7- at 314.) In order to harmonizethe conspiracy and the substantive gang crime statutes and avoid absurd results, the Court of Appeal concluded a defendant cannotbe properly charged with conspiracy toviolate section 186.22, subdivision (a). (Typed opinion at 314-3 15.) The Court ofAppeal looked at Proposition 21, which created section 182.5 in 2000 and provided that a defendant participating in a street gang may be deemedguilty of a conspiracy to commit the target listed felony and punished under section 182. (Typed opinion at 315.) The ballot materials for that proposition did not discuss the topic of conspiracy, save to state that the resulting statute would expand the law of conspiracy to include gang- related activities. (Typed opinion at 315.) The Court ofAppeal foundthis was “implicit recognition that the general conspiracy statute could not be applied to section 186.22, subdivision (a) becausea criminalstreet gang itself was a species of conspiracy.” (Typed opinion at 315-316.) The Court of Appealreversed the conviction and vacated the overt acts findings for conspiracy to committhe substantive street gang crime, but upheld the convictions on Count 9 as based on the alternative charge of conspiracy to commit murder. (Typed opinion at 316.) C. THE CHARGED CRIME OF CONSPIRING TO COMMIT THE SUBSTANTIVE STREET GANG CRIME WAS UNCONSTITUTIONALLY DUPLICATIVE AND VAGUE Respondent urgesthat there is no impedimentto charging a defendant with conspiring to commit the substantive gang participation crime because a defendant can conspire to commit the substantive street gang participation crime without actually committing that crime and may also committhe active street gang participation crime alone, without conspiring to do so with another person. (ROBMat 8-10.) Respondent emphasizes that a defendant could commit the substantivestreet gang participation crime by spontaneously aiding and abetting a gang member’s felony, which would not include a prior agreementto so act and therefore not be a conspiracy. (ROBMat9.) Respondent has missed the point. Because section 186.22 applies to any person whoactively participates in a street gang with the knowledge that the gang’s membersengagein a pattern of criminalactivity, the participantby definition has agreed to be part of the ongoing criminal activity from the very start. One’s active participation in the gang in combination with one’s knowledgeofthe gang’s ongoing criminalactivities functions as an implicit agreement to commit future crimes. A majority of -9. this Court has now found in Peoplev. Rodriguez (2012) 55 Cal.4th 1125, 1135-1139, that a gang member acting alone does not violate section 186.22, subdivision (a). Respondenturges that the substantive gang crime is not essentially a conspiracy because the felonious conduct elementneed notinclude one of the listed primary activities defining a gang. (ROBMat 11.) Because the substantive gang crime can be committed by furthering any felony, even one not gang-related, respondent arguesthere is no agreement equivalent to a conspiracy. (ROBMat 12.) Again,this argument ignores the most basic elementsofthe street gang crime,that active participation plus knowledge of the gang’s primary criminalactivitiesis itself the original agreement, not the eventual target crime committed by the defendantor others. Thisis at the core of the conspiracy-related conduct within every violation of section 186.22, subdivision (a). Respondentpoints to federal statutory schemesthat can be the basis for additional conspiracy charges - RICO and the Smith Act — and asserts they are analogousto California’s STEP Act. (ROBMat 13-15.) Respondent disagreed with the Court of Appeal’s conclusion that the federal statutory schemesare distinguishable from the STEP act based on Congress’ expressed intent to provide a separate conspiracy componentfor -10- each. (ROBMat 14-15.) Respondenturges that because the federalstatutes allow conspiracy chargesto be filed regarding RICO and Smith Act offenses,it is not “absurd”to do so and the double charging could lead to more efficient law enforcement. (ROBMat15.) Appellants’ position is that the notion of a crime defined as a conspiracy to commit a conspiracy is absurd and redundantso that a reasonable person in California would not know what conduct was prohibited by such a crime. (Williams v. Garcetti (1993) 5 Cal.4th 561, 567.) Unlike the federal laws which specifically allow for the charge of a conspiracy to violate the provisionsofthe RICO statutes and the Smith Act, there is no such statutory provision connected to the STEP Act. In sharp contrast, section 182.5 specifically allows a charge of conspiring to commit any felony committed by the membersofthat gang, not a charge of conspiring to violate section 186.22, subdivision (a)itself. As pointed out by the Court of Appeal, had California’s legislative body/electorate intended to allow for the creation of a redundant crime of conspiracy to commit a violation of section 186.22, subdivision (a), that could have been done within section 182.5 and wasnot. Although respondenturgesit is absolutely forbidden for an appellate court to write in a legislative intent that does notexist, respondent also -l1- avers that the “plain statutory language and clear legislative intent” show that conspiracy charges would be appropriate here — withoutpointing to any such “plain language” or “clear legislative intent.” (ROBMat 15.) Respondent’s own inconsistency demonstrates the faulty premiseofits argument. Respondentasserts that contrary to the understanding of the Court of Appeal, the electorate intended to expandvicarious liability for gang participants by enacting Penal Codesection 182.5. (ROBM at 16-24.) Both respondent and the Court ofAppealrelied upon the sameballot pamphlet language that Proposition 21 would “expand]] the law on conspiracy to included gang-related activities.” (ROBM at 17.) While the Court ofAppeal correctly found this language meantsection 186.22 already functioned to proscribe conspiracy to engage in gang-relatedactivities and only expanded the conspiracy to encompass the agreement to commit crimes (Typed opinion at 315), respondent urges the same language showsconspiracy liability was expandedto provide broadervicarious liability for active participants whoaidedor benefitted from any felony committed by other gang members. (ROBMat 17.) The languagecited simply does not expressly or impliedly support respondent’s position in any fashion. Respondentalso points to language in legislative intent materials -12- pertaining to a prior version ofsection 182.5 (one neverpassed by the legislature) which respondentstates purported to create a new crime of conspiracyto participate in a street gang. (ROBMat 18.) Theanalysis providedin the legislative materials reflected the lawmaker’sbelief that the proposed statute’s vague terminology and lack of a requirement of an agreement rendered it open to constitutional challenge. (ROBMat19.) Even if the material could be deemed to show the drafter’s intent to create a Separate gang conspiracy crime, there is no legally recognized mechanism for somehowgrafting that legislative intent onto the intent ofthe electorate voting later on Proposition 21. All the material really showsis that a legislator tried and failed to pass a constitutionally suspect statute which waspartially incorporated into a larger schemelater passedby the electorate. The constitutionality of the statute is not thereby proved in any way, noris the intent of electorate established. Respondentstates that defendants had the fair notice of the crime charged, as required by due process, through the plain language ofthe elements of sections 182 and 186.22, subdivision (a). (ROBMat 25-27.) Insofar as the statutes themselves do not provide for the charge of conspiracy to commita violation of section 186.22, subdivision (a), respondent’s claim mustfail. -13- Conspiracy is punished because the agreementto join others in committing/facilitating a target crime plus one overt act increases the dangerthat the target crime will be successfully committed. As explained in onearticle: The mental states cannot be identical to those required for completed crimes and completed attempts, for the defendant committing an inchoate crime is aware or believes that there is still time to desist and renounce. That awareness or belief is at least orie qualitative distinction between the mental states of completed and inchoate crimes. (Alexander & Kessler, Mens Rea and Inchoate Crimes JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY,Vol. 87, No. 4 (Summer, 1997) pp. 1138, 1139.) A conspiracy to participate actively in a gangis no different from the substantive crime ofactive gang participation. Once the agreement is made and an overt act committed, the substantive crime itself has been committed. Inchoate crimes, however, contemplate future completed crimes, crimes that have not yet occurred. In an inchoate crime, the defendant's purposeis to bring about a future crime, and that purpose can be internally and externally conditionalin all sorts of ways. (Alexander & Kessler, supra, pg 1 142.) The purpose ofcriminalizing conspiracy is that the agreementto act with othersis itself more dangerousto society than one person’s intentto commit a crime. (Krulewitch v. United States (1949) 336 U.S. 440, -14- 448-449 (concurring opn.ofJackson,J.).) In this case, the idea that appellants conspired to participate actively in a gang did not in any way increase the dangerousnessofthe underlying crime of gangparticipation becausegroupparticipation in a gang is already punishable and involves no greater dangerto the public. If conspiracyis to be a crime separate from solicitation and cognate crimes that are premised upon encouraging others,it must be because [the defendant], in agreeing with others that he will committhe crime, has increased the risk of his own criminality. Agreeing would be the culpable act that unjustifiably increases the danger to the victims ofthe contemplated crimes. (Alexander & Kessler, supra, pg 1179.) As such,no substantial legal or social purposeis served by creating the crime of conspiracy to participate in a street gang. Appellant respectfully requests that the Court ofAppeal ruling be upheld. -15- NOTICE OF JOINDER AND CONCLUSION Appellant Johnson joins any argumentthat may inure to his benefit raised by his co-appellants in their briefs. For the reasons expressed herein and in the briefs filed by all the appellants, Mr. Johnson urges this Court to upholdthe ruling of the Court ofAppeal. Respectfully submitted, 4S Susan D. Shors Attorney for Appellant Johnson Date: February 14, 2013 -16- CERTIFICATION OF WORD COUNT I certify that this Answer Brief contains 3331 words, as counted by WordPerfect version X6. an D. Shors -17- PROOF OF SERVICE I am a citizen ofthe United States and am employed in the City and County of San Francisco. I am over the age of 18 years and am not a party to the within action. My business address is 466 Green Street, Suite 300 , San Francisco, California. On the date specified below,I served the following: APPELLANT'S ANSWER ON THE MERITS on the interested parties by placing a true and correct copy thereof in a sealed envelope with postage prepaid thereon and placing the samein an United States Postal Service Mail Box addressed asfollows: Clerk of the Court Fifth District Court of Appeal 2424 Ventura Street Fresno, CA 93721 California Attorney General P.O. Box 944255 Sacramento, CA 94244-2550 Counsel for respondent Central California Appellate Program 2407 J Street, Suite 301 Sacramento, CA 95816-4736 Kern County District Attorney’s Office 1215 Truxtun Ave., 4th Floor Bakersfield, CA 93301 Kern County Clerk of the Superior Court 1400 W.Lacey Blvd. Hanford, CA 93230-5997 Corey Johnson G58095 K.V.S8.P D-7 Cell 206 PO.Box 5104 Delano, Ca 93216 Joseph C. Shipp Attorney at Law P. O. Box 20347 Oakland, CA 94620 Counsel for Dixon Sharon Wrubel Attorney at Law P. O. Box 1240 Pacific Palisades, CA 90272 Counsel for Lee I declare underthe penalty of perjury that the foregoingis true and correct. Executedthis day of February, 2013.