PEOPLE v. JOHNSON

Appellant, Joseph Kevin Dixon, Answer Brief on the Merits

Cal.January 31, 2013

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA i PEOPLE OF THE STATE OF CALIFORNIA, ) No. 8202790 ) Plaintiff and Respondent, ) (Kern County No. BF122135A-C) Defendants and Appellants. Erank A. McGuire Clerk ) \ SUPREME COURT : FILED ) COREY RAY JOHNSON,etal., JAN 3.4 2013 ) ) ) Deputy On Appeal from a Judgment of the Superior Court of the State of California in and for the County of Kern The Honorable Gary T. Friedman Judge Presiding APPELLANT JOSEPH DIXON’S ANSWER BRIEF ON THE MERITS Joseph Shipp Attorney at Law Post Office Box 20347 Oakland, California 94620 State Bar No. 151439 (510) 530-9043 josephcshipp@aol.com Counsel for Appellant by Appointment of the Supreme Court. TABLE OF AUTHORITIES STATEMENTOFISSUE STATEMENT OF APPEALABILITY STATEMENT OF THE CASE STATEMENT OF THE FACTS ARGUMENT I. CONCLUSION TOPICAL INDEX TO AVOID ABSURD REDUNDANCY AND GRAVE UNCONSTITUTIONAL VAGUENESS, AND TO EFFECT MANIFEST VOTER INTENT IN ENACTING A MORE SPECIFIC PROVISION, CALIFORNIA STATUTES CANNOT BE CONSTRUED TO AUTHORIZE A CHARGE OF CONSPIRACY TO ACTIVELY PARTICIPATE IN A CRIMINAL STREET GANG; JOINDER IN ARGUMENTS OF COAPPELLANTS .. 1.0... 2. eee ee ee A. STANDARD OF REVIEW AND KEY PRINCIPLES OF STATUTORY CONSTRUCTION IN A CODE-CRIME STATE 2.6...ee B. CALIFORNIA STATUTES CANNOT BE CONSTRUEDTO AUTHORIZE A CHARGE OF CONSPIRACY TO ACTIVELY PARTICIPATE IN A CRIMINAL STREET GANG, A REDUNDANT AND HOPELESSLY VAGUE GENERIC CONSPIRACY TO COMMIT A GENERIC CONSPIRACY WHICH VOTERS HAVE SUPPLANTED BY A MORE SPECIFIC PROVISION ................. C. JOINDER IN ARGUMENTS OF COAPPELLANTS ........ WORD COUNT CERTIFICATE TABLE OF AUTHORITIES Page(s) CASES In re Davis (1966) 242 Cal.App.2d 645 2... ee ees 6 - In re Harris (1989) 49 Cal.3d 1310 26.eees 7 Horwich v. Superior Court (1999) 21 Cal.4th 272 ©... 6 ee eee eee 7 Iannelli v. United States (1975) 420 U.S. 770 2.0.00. e eee eee eee 22 Keeler v. Superior Court (1970) 2 Cal.3d 619 «2.1... eee eee eee eee 6 People v. Albillar (2010) 51 Cal.4th 47 2... eeees 13 People v. Aston (1985) 39 Cal.3d 481 20... eeees 7 People v. Avery (2002) 27 Cal.4th 49 10... eees 8 People v. Castaneda (2000) 23 Cal.4th 743 62-11 ee ee ete 14 People v. Garrett (2001) 92 Cal.App.4th 1417 ....... Dee 7 People v. Green (1991) 227 Cal.App.3d 692).( ...--- ee eee e 7 People v. Iniguez (2002) 96 Cal.App.4th1ee 20 People v. Mesa (2012) 54 Cal.4th 191 22... eeeee 17 People v. Prevost (1998) 60 Cal.App.4th 1382 ©... ee ee ees 12 People v. Rackley (1995) 33 Cal.App.4th 1659 .....eee 7 People v. Robles (2000) 23 Cal.4th 1106 «1... 6. eee eee eee— 8 People v. Rodriguez (2012) 55 Cal.4th 1125 «1.1... - eee 14, 15, 19, 20, 21 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 «2... 2c eee 8 il Salinas v. United States (1997) 522 U.S. 52 2... eee ee. 22, 23 Sedima v. Imrex Co. (1985) 473 U.S. 479 2.0.ee ee ee 23 Shoban v. Board of Trustees (1969) 276 Cal.App.2d 534... 2.2... . ee ee 6 State v. Mendoza (R.I. 2005) 889 A.2d 153) ww eeee ee. 21, 22 United States v. Brandao (1st Cir. 2008) 539 F.3d44 ................. 23 CONSTITUTIONAL PROVISIONS Cal. Const., art. I, § 1,7, 15,16 0...eee eee ee 13 U.S. Const., amends. I, V, VI, VIH, XIV .........2.--2.2. 0.0.0 0050% 13 STATUTES 18 U.S.C. § 1962(c) 2...ee 23 Pen. Code, §6 2.ee 6 Pen. Code, § 182 ...... 0.0... 0. ce ee 1, 3, 5, 10, 17, 19, 21, 24 Pen. Code, § 182.5 «2... 0...ee 10, 15, 16, 24 Pen. Code, § 184 ... 0... 0...esee 12 Pen. Code, § 186.22 .............2....00006. 2, 3,5, 10, 12-14, 18, 25 Pen. Code, § 187, subd. (@) 2...2... 2 Pen. Code, § 190.2, subd. (a)(3) 2...ee 2 Pen. Code, § 246 .. 20... . 0... ee ee esee ee eee 3 Pen. Code, §§ 664, 187, subd. (a) 2.2.2... 2.0... 02. eee ee — 2 Pen. Code, § 1237, subd. (a) 2...ee 2 Pen. Code, § 1259 2...ee 6 lil Pen. Code, § 12021, subd. (a) ©... eeeeee es 3 Pen. Code, § 12022.53, subds. (d), (©()U) «ee ee eee s 2,3 MISCELLANEOUS AUTHORITIES CALCRIM No. 1400 iv IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, COREY RAY JOHNSON,etal., Defendants and Appellants. N e e N e N e e e e e e e e e e e e e e STATEMENT OF ISSUE Broadly stated, the issue before this Court is whether state or federal law precludes a charge of conspiracy to actively participate in a criminal street gang under Penal Code sections 182 and 186.22, subd. (a) (at least in the case of an existing street gang). STATEMENT OF APPEALABILITY This is an appeal from a judgment which finally disposesof all issues between the parties. (Pen. Code, § 1237, subd. (a).) STATEMENT OF THE CASE Originally charged in a capital complaint (1 CT 150), appellant and codefendants Corey Johnson and David Lee were ultimately prosecuted on an amended indictment filed March 6, 2008 alleging special circumstance murder and other counts; the prosecution did not seek the death penalty. (1 CT 1-28.) Codefendants Johnson and Lee, not appellant, were charged with a separate attempted murder under Count1. (1 CT 1.) In Counts 2-11, appellant and codefendants were jointly charged with: three counts of premeditated murder (Pen. Code, § 187, subd. (a)) (Counts 2-4), each allegedly committed to aid a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(C)), with intentional discharge ofa firearm causing injury by a gang principal (Pen. Code, § 12022.53, subds. (d), (e)(1)), and each with a multiple murder special circumstance (Pen. Code, § 190.2, subd. (a)(3)) and an intentional gang murder special circumstance (Pen. Code, § 190.2, subd. (a)(22)); two counts of attempted murder (Pen. Code, §§ 664, 187, subd. (a)) (Counts 5 and 7), each allegedly committed to aid a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(C)), with intentional discharge of a firearm causing injury by a gang principal (Pen. Code, § 1202.53, subds. (d), (e)(1)); two counts of ex-felon in possession of a firearm (Pen. Code, § 12021, subd. (a)) (Counts 6 and 10), each allegedly committed to aid a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)); one count of shooting at an occupied vehicle (Pen. Code, § 246) (Count 8) to aid a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(C)); one count of conspiracy to commit murder, assault with a firearm, robbery, and/or active gang participation (Pen. Code, § 182, subd. (a)(1)) (Count 9) to aid a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(C)); and one count of active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)) (Count 11). (1 CT 1-28.) After requests for exhibits and a question regarding first versus second degree murder (9 CT 2521-2528), the jury found defendantsguilty. (9 CT 2529-10 CT 2771; 63 RT 11514.) The jury found appellant guilty on Counts 2-11, found all murders to be in the first degree, found all offense related and prior conviction allegations to be true, and under Count 9 found conspiracy to commit first-degree murder and other crimes including active gang participation (along with various overt acts). (9 CT 2603-10 CT 2653; 10 CT 2678; 63 RT 11514; see also Slip Opn. of Court of Appeal, pp. 296-300 [describing Count 9 conspira cy findings].) The court later sentenced appellant to a prison term of thre e terms of life without parole (LWOP) plus 203 years to life plu s 46 years as follows; this included a consecutive term of 50 years to life under Count 9 (25 to life for conspiracy to commit first-degree murder, dou bled under the second-strike provision). (10 CT 2811-2828, 2843-2846 ; 6 RT 11623- 11640.) Appellant and his codefendants timely appealed. (10 CT 2866 -2869.) In the published portion ofits decision, the Court of Appeal r eversed the Count 9 conviction for conspiracy to actively participate in a criminal street gang on grounds such a charge is legislative barred and redundant perhaps to the point of unconstitutional vagueness and absurdity or impossibility; however, the Court affirmed the judgment i n most other respects (including Count 9 based on other findings of conspi racyto commit murder). (Slip Opn., pp. 308-316, 328 & fn. 161.) This Court granted respondent’s petition for review on the publ ished portion of the decision addressingthe viability of a charge of co nspiracy to actively participate in a criminal street gang. STATEMENT OF THE FACTS Similar to respondent’s opening brief on the merits (RAOB 1-3), an extended recitation of the underlying facts is not necessary to resolve the issue on review. As respondent notes, defendants were charged with several crimes, including three murders and three attempted murders over a six month period, assertedly to aid a criminal street gang. (RAOB 1-3; Slip Opn., pp. 5-85 [Court of Appeal’s factual summary].) As relevant here, Count 9 charged conspiracy (Pen. Code, § 182, subd. (a)(1)) to commit murder, assault with a firearm, robbery, and/or active gang participation (Pen. Code, § 186.22, subd. (a)). (1 CT 22-23; RAOB 2-3.) Count 9 alleged six fairly generic overt acts (i.e., presence with other defendants on several different dates and locations mostly corresponding to charged offenses); but the generic overt acts did not specify criminal acts beyond presence and several of the overt acts did notlist appellant as being present. (RAOB 2-3; Slip Opn., pp. 296-300 [describing Count 9 conspiracy allegations and findings].) ARGUMENT I. TO AVOID ABSURD REDUNDANCY AND GRAVE - -YNCONSTITUTIONAL VAGUENESS, AND TO EFFECT MANIFEST VOTER INTENT IN ENACTING A MORE SPECIFIC PROVISION, CALIFORNIA STATUTES CANNOT BE CONSTRUED TO AUTHORIZE A CHARGE OF CONSPIRACY TO ACTIVELY PARTICIPATE IN A CRIMINAL STREET GANG; JOINDER IN ARGUMENTS OF COAPPELLANTS. A. STANDARD OF REVIEW AND KEY PRINCIPLES OF STATUTORY CONSTRUCTION IN A CODE-CRIME STATE. The construction of code sections and their application to undisputed facts presents questions of law which this Court reviews indepen dently. (See, e.g., Shoban v. Board of Trustees (1969) 276 Cal.App.2d 53 4, 541; Pen. Code, § 1259.) California is a code state and in the absence of legislative proscription of conduct, there is no crime. (Pen. Code, § 6; Keeler v. Superior Court (1970) 2 Cal.3d 619, 631-632.) To make it "a jud icial function ’to explore such new fields of crime as they may appear from ti me to time’ is wholly foreign to the American concept of criminaljustice" an d "raises very serious questions concerning the principle of separation o f powers." (In re Davis (1966) 242 Cal.App.2d 645, 655-656 & fn. 12 [cit. om.].) The fundamental goal of statutory construction is to ascertain the intent of the legislature (or the voters), starting with the plain statutory language. (People v. Aston (1985) 39 Cal.3d 481, 489.) Voters and legislators are presumed to be aware of existing law (including cases applying constitutional limitations upon punishing bare gang membership such as People v. Green (1991) 227 Cal.App.3d 692, 700). (in re Harris (1989) 49 Cal.3d 131, 136; see also Horwichv. Superior Court (1999) 21 Cal.4th 272, 276-277.) However, with both initiatives and statutes, it is voter or legislative intent that ultimately controls over literal language. (People v. Garrett (2001) 92 Cal.App.4th 1417, 1422.) Thus, courts examine the entire structure of an enactment(here including both the gang provision and the generic conspiracy chapter), not just literal language inisolation; language that appears unambiguous on its face may be shown to have a latent ambiguity; if literal or latent ambiguities appear,courts will consider the results that flow from a particular construction; and, in the end, the courts will harmonize the provisions to best effect voter intent and avoid constitutional problems or absurdities in application. (People v. Garrett, supra, 92 Cal.App.4th at p. 1422; see also People v. Rackley (1995) 33 Cal.App.4th 1659, 1665-1667 [despite literal language of escape provision, legislature did not intend it to apply to juvenile escapes].) 7 Importantly, even if a statute is reasonably susceptible of two constructions, one of which raises serious constitutiona l concerns, the court will adopt the construction which avoids constitutional co ncerns, even though other construction is equally reasonable. (People v. Sup erior Court (Romero) (1996) 13 Cal.4th 497, 509.) Also importantly,it is settled that any true ambiguity in the me aning or application of statutory language, constitutional or not, mus t be resolved in favorof the defendant. (People v. Avery (2002) 27 Cal.4t h 49, 57-58.) Particularly in the absence of clear legislative history, this Cou rt: _.. construe[s] the law ’as favorably to criminal defendants as reasonably permitted by the statutory language and circumstance s of the application of the particular law at issue.’ (Citations.) T his *protects the individual against arbitrary discretion by officials and judges and guards against judicial usurpation of the legisl ative function which would result from enforcementofpenalties when th e legislative branch did notclearly prescribe them.’ (People v. Robles (2000) 23 Cal.4th 1106, 1115 [cit. om.] [emp h. added].) B. CALIFORNIA STATUTES CANNOT BE CONSTRUED TO AUTHORIZE A CHARGE OF CONSPIRACY TO ACTIVELY PARTICIPATEIN A CRIMINAL STREET GANG, A REDUNDANT AND HOPELESSLY VAGUE GENERIC CONSPIRACY TO COMMIT A GENERIC CONSPIRACY WHICH VOTERS HAVE SUPPLANTED BY A MORE SPECIFIC PROVISION. Respondent at times incorrectly suggests active gang-participation requires assistance of felonious conduct that is gang-related, i.e., commission of a "gang crime." (RAOB 8, 23.) In fact, active gang participation is considerably more generic and is defined in terms similar to a generic conspiracy with a generic (non gang-related) overt act or target crime. Thus, respondent asks the court to apply one generic conspiracy on top of another. This is unpersuasive -- particularly in light of contrary voter treatment of this specific crime as part of the general conspiracy chapter and the patent differences between our active gang participation crime and RICO. California voters had every right and reasonto tailor our specific conspiracy provision to our specific gang participation crime, not RICO. While voter-intent indicia may not be expansive in the ballot materials, the preponderance of legislative/voter intent and statutory construction principles show California has adopted two stricter more specific provisions (active gang participation and a specific conspiracy provision for that crime), not the RICO crime and generic RICO-conspiracy provision urged by respondent. The key problems with respondent’s analysis are that it fails to recognize: the breadth of informalacts short of an express agreementthat may show conspiracy (Pen. Code, § 182), resulting in real redundancy between the gravamen of both crimes at issue; the wide breadth of already generic acts and objects constituting active gang participation (Pen. Code, § 186.22, subd. (a)), already defined in terms similar to generic conspiracy, resulting in serious vagueness in applying this crime as a straight conspiracy; how voters and legislators would view the specific conspiracy provision (Pen. Code, § 182.5) enacted for the specific crime ofactive gang participation whereit involves a specific felony; and the fact active gang participation (Pen. Code, § 186.22, subd. (a)) and section 182.5 are both carefully tailored provisions -- both quite strict and very different than RICO -- that are designed to avoid punishing mere gang membership or association. | Respondent’s reliance on the RICO offense (a very different crime that requires the target felonies to be gang/enterprise-related) is also unpersuasive. The RICO andother federal offenses cited by respondentare much weaker indication of how our state opts to treat gang participation conspiracies than section 182.5 is; certainly, voters had good reasonto treat our gang participation offense in terms of section 182.5, rather than the 10 straight conspiracy approach applied to the RICO offense. Given the nature of our generic gang participation offense, unlike federal legislators, California voters have wisely enacted a narrower but strict conspiracy-punishmentprovision linked to specific felonies in lieu of the redundant, vague, and open-ended conspiracy charge urged by respondent. Allowance of respondent’s generic conspiracy charge would open the door to tenuous bare-gang-association prosecutions of the most hapless hanger-ons of the most tenous gangs based on the most tenuous (inchoate) gang participation counts (more inchoate even than attempts); open the door to jurors hearing prejudicial gang evidence in many tenuous gang and accomplice liability cases (based on active gang participation counts, which are rarely severed); open the door to expansive untested hearsay under guise of ranging gang-conspiracy exceptions, as occurred here; and result in open-ended conspiracy charges that are very vague and confusing for jurors and courts alike to apply which voters never intended. And given the attempt and conspiracy charges already available to prosecutors for failed target crimes, not to mention the strict section 182.5 charge, no reason is apparent why the problematic open-ended conspiracy charge is needed. Turning to respondent’s arguments, respondent is correct that the existence of a gang and active participation in that gang do not always 11 require an express conspiracy agreement. (RAOB 12.) B ut the crime of conspiracy does not either. To the contrary, any circumstan tial evidence suggesting a mutualtacit understanding to commit an unlawful de sign may show an agreement for purposes of conspiracy. (People v. Prevo st (1998) 60 Cal.App.4th 1382, 1399; see also Slip Opn., p. 310.) T his well describes both active gang participation (Pen. Code, § 186.22 , subd. (a)) and the existence of a criminal street gag (Pen. Code, § 186.22, subds. (e€)- (f)). The conspiracy requirement of an overt act (Pen. Code, § 184)is likewise reflected, for the same reason, in both active gang p articipation and the very definition of a criminal street gang. (Pen. Code, § 186.22, subds. (a), (e)-(f).) Against this background, the Court of Appeal correctly conclud es appellant was effectively charged with conspiracyto actively part icipate in a conspiracy. (Slip Opn., pp. 313-314.) Absent any apparent intent to permit such a conspiracy charge, the California statutes must be ha rmonized in a manner that avoids such a redundant and unworkableabsurdity . (Slip Opn., p. 314.) Further, the Court of Appeal’s analysis correctly co nstrues the statutes in this manner to avoid the problem of nonsensical redu ndancy that rises to the point of serious unconstitutional vagueness not to m ention improper punishmentof bare gang association, if our conspiracy- type gang participation chargeis also charged as a conspiracy. (U.S. Const., amends. 12 I, V, VI, VIN, XIV; Cal. Const., art. I, § 1, 7, 15, 16; Slip Opn., p. 313, fn. 161.) Moreover, contrary to respondent (RAOB 25), a charge of conspiracy to actively participate in a street gang (itself a conspiracy on more than onelevel) is indeed unconstitutionally vague and problematic in application. This is due to the wide swath of the generic objects and conspiracy-type overt acts involved in the crime of active gang participation. (Pen. Code, § 186.22, subd. (a).) It is simply unclear whether the overt act(s), conspiracy object(s), or intent of the deemed conspiracy here would relate to: knowing active participation in a criminal street gang (beyond nominal or passive involvement); versus the separate element of willful promotion, furtherance, or assistance of "any felonious conduct" by gang members. (Pen. Code, § 186.22, subd. (a); see also RAOB 19.) This is a serious problem and, importantly, it appears to be why voters enacted a more specific conspiracy provision focused on punishment for the specific felony (which need not be gang-related). The fact that "any felonious conduct” need not be gang-related or specified in the charge only adds to the grave confusion and vagueness in application. (See People v. Albillar (2010) 51 Cal.4th 47, 54-59 [unlike subdivision (b) gang enhancement, legislature eliminated requirement that felonious conduct be gang-related or committed with specific intent to aid 13 gang for purposes of active gang participat ion under subdivision (a)].) Indeed, the language (at least according to resp ondent; RAOB 10) does not even expressly require intentional aiding and ab etting of the felony (versus willful promotion or furtherance). (But see CA LCRIM No. 1400; People vy. Castaneda (2000) 23 Cal.4th 743, 750.) Thus, the door is open to expansive conspiracy theories based on no more than (1) knowing participation in a gang or (2) spontaneous fu rtherance of some purely personal unspecified crime by a member -- whi ch do not really make out any conspiratorial agreement whatsoever. Contrary to respondent, the fact the "felonious c onduct" need not be limited to the primary activity or pattern crime s needed to make out the gang does not eliminate the core vagueness or redundancy: the gravamen of the crimeisstill directed to persons actively involved with a gang(i.€., a conspiracy), not just the commission of the s econdary crime or a solo crime. (Pen. Code, § 186.22, subd. (a); see also P eople v. Rodriguez (2012) 55 Cal.4th 1125, 1132-1138 [while fel onious conduct aided need not be gang-related, such conduct must be commi tted by at least two gang members, not just one acting alone, so as to es tablish some gang nexus; overall gang "context" and "potential due process c oncerns" about punishing bare gang membership militate in favor of cons truction requiring conduct by more than one gang member, especially wher e the subdivision (a) crime 14 need not be gang-related (unlike the subdivision (b) enhancement)].) Clearly, the due process concerns noted in Rodriguez also counsel caution in accepting respondent’s views favoring the most equivocal and expansive (if not largely tactical) conspiracy charges against the most tenuous gang hangers-on in the most tenuous cases. (Respondent’s incorrect characterizations of the subdivision (a) felonies as gang-related also mirror the mischaracterizations contained in the decisions disapproved in Rodriguez. (See People v. Rodriguez, supra, 55 Cal.4th at pp. 1136- 1137.)) But even setting aside the constitutional concerns and redundancies, voter intent here in enacting a more specific (strict) conspiracy provision (which pointedly avoids risks of punishing mere membership by focusing on specific felonies) itself appears persuasive. Our gang participation offense is a "carefully structured" (People v. Rodriguez, supra, 55 Cal.4th at pp. 1136-1137) provisionfor active gang participants, focused on felonies committed by more than one member in a manner designed to avoid constitutional problems with punishing bare membership. Sois the specific conspiracy provision (Pen. Code, § 182.5) addressedto this specific crime which voters have enacted. Our gang participation offense is very different from the federal RICO offense (or our subdivision (b) gang enhancement); our voter conspiracy provision is thus very different from the blanket 15 federal RICO conspiracy provision respondent relies upon too. The fact California voters, unlike federal legislators, have ena cted a narrower approach to addressing potential gang participati on as conspiracies, which avoids the redundancy and vagueness and bare- association problems, strongly supports the Court of Appeal’s view regarding voter/legislative intent and the language in our statutes. (Pen. Code, § 182.5; Slip Opn., pp. 315-316.) Federal legislators may h ave enacted a separate generic conspiracy crime for RICO cases. (RAO B 13.) California has not, and for good reason. In any event, vo ters would understand section 182.5, part of the same general conspiracy chap ter as the general conspiracy provision section 182, as the way in which pot ential conspiracies to commit this specific crime are treated under our law. (Slip Opn., pp. 315-316.) Section 182.5 is a specific strict statute, contained in the general conspiracy chapter, and addressed to a specific crime stated in the gang chapter. Voters, notjust the Court of Appeal, would question how you can conspire to actively participate in a criminal street gang, an obvious f orm of conspiracy down to primary activity/pattern crime elements. Voter s would read section 182.5 as a specific conspiracy provision designe d to focus more clearly on punishment for the specific felony assisted, not on broader active gang participation that amountsto a conspiracy anyway. At 16 best the conspiracy provisions are ambiguous as to whether section 182 applies "notwithstanding" section 182.5; this is a true ambiguity which must be read in favor of the criminal defendant. Voters enacted a strict provision allowing for active gang participation punishment under conspiracy principles even short of (1) an express agreement or (at least according to respondent) (2) adequate grounds to independently convict the defendantas an accessory to the specific felony (see RAOB 10; People v. Mesa (2012) 54 Cal.4th 191, 198). Voters would view this specific strict provision, part of the general conspiracy chapter, as the manner in which conspiracies to actively participate in a gang are treated. Voters would take this specific provision as strict gang punishment, but punishment tied to the specific underlying felony, not generic or failed gang participation. Noted by the Court of Appeal, the fact ballot materials told voters section 182.5 expands conspiracy liability further suggests voters would understand the generic conspiracy provision (Pen. Code, § 182) did not apply to this crime. Moreover, voters would understand specific crimes may not succeed, warranting charges of conspiracy or attempt to commit that crime. Thus, prosecutors are free to charge active gang participation or attempt or conspiracy to commit the specific felony; if these chargesfail, they are also free to charge the strict 182.5 offense; they can also charge the subdivision 17 (b) gang enhancement (Pen. Code, § 186.22, subd. (b)) if the defendant commits a gang-related felony to aid criminal conduct by gang members, but lacks knowledge of the gang’s activities. But voters would hardly understand section 182.5 to endorse respondent’s v iew (RAOB 8, 22-23) favoring open-ended conspiracy punishment for persons w hoare not really active in a gang; persons wholack knowledge of the gan g’s activities; or persons whose gang is notyet formed in terms of numbe rs of members or predicate acts. This is a true and dangerous slippery slope which, unl ike RICO conspiracies, casts a wide net over the most attenuat ed or unknowing hangers-on not involved in aiding any gang-related cr ime. You don’t conspire to be in a conspiracy; you certainly don’t con spire to become passively or unknowingly involved in a gang, or in a grou p that does not constitute a gang (yet). Where prosecutors can charge failed discrete felonies in so many other ways (even under section 182. 5 short of true accessory liability for those felonies), we should have goo d reason before concluding voters authorized such reaching and ri sky conspiracy prosecutions of marginal gang hangers-on. The absence o f an express preclusion of respondent’s conspiracy charge in the gene ric conspiracy 18 section (Pen. Code, § 182) is not such a reason.! In the face of so many other available options, respondent’s view that disallowing a generic conspiracy charge is somehow absurd or hamstrings prosecutors is no more persuasive than like arguments raised in favor of a solo active gang participation charge in Rodriguez. (People v. Rodriguez, supra, 55 Cal.4th at pp. 1138-1139 & fn. 9 [lone perpetrator notliable for subdivision (a) felony is still punishable under subdivision (b) gang enhancement, as well as the underlying felony provision].) Indeed, the main benefits of the charge appear to be either (1) tactical (in cases like this) or (2) in allowing the most tenuous gang charges against the most hapless failed hangers-on involved in the most equivocal or failed crimes that are separately chargeable anyway. Equally important, respondent’s urgings (RAOB 22-23) in favor of conspiracy charges against insufficiently active members (or failed/not-yet-established gangs) pose even greater constitutional concerns about potential punishment ofbare gang membership (not to mention association prior to formation of a gang and vagueness issues here) than those found central to assessing legislative intent in 1 Respondent suggests the active participation conspiracy charge is needed for cases where the specific felony does not ultimately occur. (RB 8, 23.) But prosecutors remain free to charge conspiracy to commit that felony, which as respondent acknowledges does not require completion of the target offense. (RB 8.) 19 Rodriguez. (People v. Rodriguez, supra, 55 Cal.4th at pp. 1133 -1137 & fn. 7.) Contrary to respondent,in the face of such a specific enactment as section 182.5 the fact the general conspiracy provisionrefers to cons piracy to commit "any crime" is no answereither. (See also People v. Iniguez (2002) 96 Cal.App.4th 75, 78-79 [the fact statutes refer to an attemp t or conspiracy to commit "any" crime does not mean the statutes a uthorize crime of conspiracy to commit attempted murder; one does not con spire to commit a failed crime or an ineffectual act].) Similarly here, you do n’t conspire to become passively or unknowingly involved in a gang, muc h less a group that does not constitute a gang. Where voters have ad ded conspiracy liability short of a conspiracy and discrete attempts and conspiracies are chargeable anyway, respondent’s generic conspiracy cha rge adds nothing but confusion, the ability to inject gang evidenceinto tri als, or the ability to charge the most tenuous of failed-gang or failed/pass ive- participation cases.” 2 The Court of Appeal wisely declines to address the applicability of a conspiracy charge where no gangexists yet, limiting its discussion to cases involving an existing gang. (Slip Opn., p. 316, fn. 163.) Respondent, in contrast, urges a conspiracy charge may lie for persons who conspi re to actively participate in a gang that does not exist yet. (RB 8.) Respond ent also broadly urges the conspiracy crime could apply if any element of the gang crime were lacking (RB 8), but does not address whether the cr ime would be constitutional if the knowledge element of active gang 20 Although three persons were charged here, the fact the active participation offense(like generic conspiracy; Pen. Code, § 182, subd(a)) focuses on collective participation of at least two persons (People v. Rodriguez, supra, 55 Cal.4th at pp. 1139) likewise tends to support application of Wharton’s Rule precluding the charging of such crimes as a redundant generic conspiracy. (See, e.g., State v. Mendoza (R.1. 2005) 889 A.2d 153, 160-161 & fn. 6.) Moreover, the relevance of Wharton’s Rule as affording some guidance here is heightened by the facts: (1) the active gang participation offense: already focuses on broader conspiratorial activity (the same danger addressed by the general conspiracy provision); (2) but it does so in terms of discrete. concerted crimes by at least two persons which can be as purely personal as buying drugs (crimes not necessarily posing broadersocietal risks); and (3) the parties involved in the conspiracy (RAOB 8) are typically the same ones charged for the participation were lacking. This all well illustrates the dangers of respondent’s position. While voter and legislative intent controls, to the extent the Court is free to consider practical and policy ramifications, appellant must ask why it is worth opening the door to so much confusion and potential unconstitutionality when so many other charges are available to prosecutors. If underlying failed felonies or section 182.5 can be charged anyway, what besides tactical advantages and conspiracy charges for the most equivocal, inactive, or failed hangers-on (or failed gangs) is gained? If an attempt or conspiracytostart a failed gang even needs to be chargeable, the Court of Appeal’s analysis properly excludes this scenario from its analysis. 21 substantive offense. (See Jannelli v. United States (1975) 420 U.S. 770, 783-786.) Certainly, unlike federal law and more explicit conspiracy provisio ns within specific laws,all indications here are that voters have not exempte d the gang crime from this rule by providing a more specific co nspiracy charge in lieu of generic conspiracy. (Cf. State v. Mendoza, supr a, 889 A.2d at p. 160, fn. 6 [laws whichhave been held to state excep tions to the rule].) At least, the cases addressing the Wharton Rule (a c anon of construction applied where legislative intent is not clear) validate t he Court of Appeal’s focus onlegislative intent underlying the generic conspiracy provision in the face of redundant application, despite its facial a pplicability to "any" crime. And the rule of lenity has much stronger applica tion here to our ambiguous conspiracy chapter than it does to federal and s tate laws explicitly providing for generic conspiracy charges within the spec ific laws setting forth the substantive crime. (See, e.g., State v. Mend oza, supra, 889 A.2d at p. 160, fn. 6; Salinasv. United States (1997) 522 U.S. 52, 62 [RICO].) Finally, there are big differences between the RICO crime and our more generic crimeof active gang participation that well explain why voters could opt against straight conspiracy treatment bere. The RIC O crime requires (1) participation in the " enterprise’s affairs’" and (2) do ing so 22 through a pattern of racketeering activity. (18 U.S.C. § 1962(c) [emph. added]; Salinas v. United States, supra, 522 U.S. at pp. 62-63; see also Sedima v. Imrex Co. (1985) 473 U.S. 479, 496-497, fn. 14 [defining pattern of racketeering activity].) In contrast, our crime refers to much more amorphousactive participation (not defined in any way, muchless in terms of a pattern of enterprise-related activity); the specific felonious conduct promoted can be any felony by gang members, no matter how purely personal in nature and whether gang-relatedor partof the enterprise or not; the discrete current felony can be a single felony, not a pattern of them; at least according to respondent (RAOB 10; but cf. CALCRIM No. 1400), the "willful" promotion of the felony need not even rise to the level of accomplice liability; and like the current felony, the predicate/pattern priors needed to make out a gang need not be gang-related either. (CALCRIM No. 1400; cf. United States v. Brandao (1st Cir. 2008) 539 F.3d 44, 53-56 [explaining how multiple required RICO pattern predicate offenses were all sufficiently linked to gang enterprise].) Apparently designed to cast a wider net of liability to catch persons who aid gangs short of proof they are liable for intentionally aiding any specific crime, or at least any specific gang-related crime, the California crime requires far less proof than a RICO violation. The California crime focuses on gangs, but in a generic manner far broader than discrete enterprise-related RICO 23 conspiracies. These are big differences that make ou r broader California gang participation crime a lot closer to a generi c conspiracy-type offense already, as compared to the more discrete RICO c rime. There is a big difference between: participation in gang affairs thr ough a pattern of multiple gang- related crimes (RICO); and generic " activ e participation” ina gang, coupled with promotion of any single non-gang rel ated felony (e.g., an assault over a family dispute) committed by gang m embers. The latter California element is a generic non-enterprise-rela ted actus reus that essentially serves as an overt act, confirming our active ga ng participation offense is much closer to a conspiracy-type offense than RICOis. Defined in amorphous terms of generic pa rticipation with a single generic overt act/discrete felony that n eed not be gang-related, the California offense is already a lot closer to a conspiracy or inchoateliability than RICO is. Indeed, not only is a California gang and knowing participation in that gang, as defined, a species of generic conspiracy (especially where pattern/predicate crime s need not be gang-related); the active gang participation offense under s ubdivision (a), providing for a single pedestrian overt act (gang-related or n ot), is constructed in terms akin to generic conspiracy as well, apparentl y in order to enlarge liability like conspiracy (Pen. Code, § 182) and gang -participation conspiracy (Pen. 24 Code, § 182.5) both already do. Adding a generic section 182 conspiracy charge on top of two existing generic conspiracy-type/liability-expanding layers means voters authorized thrice redundancy and thrice vague and overbroad punishmentof association. This is a big difference from RICO and it poses serious problems. California voters could well opt in favor of punishing the specific felony under conspiracy principles, but against further treating failed generic "participation" in a gang, as amorphously provided in ourstatute in terms similar to conspiracy, as a separately chargeable redundant conspiracy. Unlike the Smith Act involving revolutionary organizations (RAOB 14), the active gang participation defendant need not even be a member of the organization. And unlike the foreign terrorist provision (RAOB24), the specific acts of assistance for active gang participation only require the aiding of any felonious conduct by gang members(not the gang) (withoutspecific intent to aid the gang (versus members) either). (Cf. Pen. Code, § 186.22, subd. (b) [for separate gang enhancement, current felony must be gang-related].)’ > Respondentat timesalso incorrectly suggests active gang participation requires assistance of felonious conduct committed "by the gang" (RB 25 emph. added]), not just gang members. In stating the elements ofits conspiracy charge, respondent also refers to an agreement to commit a "gang crime" (RB 8 [emph. added]) even though (unlike the subdivision (b) enhancement) the felonious conduct here need not be gang-related. Once 25 In any event, our voters have wisely tied conspiracy to parti cipate in a gang to the specific felony, not inchoate plots to particip ate passively or unknowingly in a gang, or something that is not even a g ang. Courts should be loathe to infer such a broad conspiracy crime wh ere, unlike federal law, none has beenspecifically enacted, and the ext antspecific voter enactmentis pointedly to the contrary. In sum, respondent can point to a few non-overlapping tec hnical elements and the absence of any express statutory precl usion of the conspiracy charge in this context. In contrast, the Court o f Appeal can point to serious redundanciesto the point of absurdity and unco nstitutional vagueness and overbreadth, as well as a specific voter prov ision more narrowly focused on specific felonies rather than a global active gang participation charge. Appellant adds the serious potential for substantive unfairness (indeed false convictions) if the charge is permit ted, not to mention serious confusion in applying the charge. Moreover, prosecutors remain free to charge attempts or conspiracies to commit th e specific "felonious” acts required for gang participation, not to mention the section 182.5 offense providing for liability even short of a provable conspiracy. While prosecutors remain free to bring charges of inchoate crime s again, the subdivision (a) active participation crime is conside rably more generic than the subdivision (b) enhancement (or RICO). 26 for discrete felonies, voters have wisely treated conspiracy to commit active gang participation in terms of the specific felony and the punishment therefor, not the redundant global generic conspiracy charge urged by respondent, which amounts to a piling on of multiple generic conspiracies. California voters had every right and reason to tailor our specific conspiracy provision to our specific gang participation crime, not RICO. Forall the foregoing reasons, the judgment reversing Count 9 based on conspiracy to participate in a criminal street gang must be affirmed. C. JOINDER IN ARGUMENTS OF COAPPELLANTS. Appellant respectfully joins in all arguments, briefs, and motions presented or to be presented by coappellants in this case to the extent these matters inure to his benefit. 27 CONCLUSION Forall of the foregoing reasons, the judgment of the Cour t of Appeal reversing Count 9 based on conspiracy to participate in a criminal street gang must be affirmed. Respectfully Submitted, pct Jostbh Shipp Counsel for Appellant 28 WORD COUNT CERTIFICATION By mysignature below and onthe attached proofof service for this brief, I, Joseph Shipp, counsel for appellant, hereby certify, under penalty of perjury as specified in the proof of service appended hereto, that the body of the brief herein, exclusive of tables and appendices, contains 5477 words, as determined by the word count function of the word processing program used to prepare the brief. Joseph Shipp Counsel for Appellant DECLARATION OF SERVICE Re: People v. Dixon No. S202790 I, Joseph Shipp, declare that I am over 18 years of age, and not a party to the within cause; my employment address is Post Office Box 20347, Oakland, California 94620. I served a true copy of the attached: APPELLANT’S ANSWERBRIEFoneach of the following, by placing same in an envelope (or envelopes) addressed (respectively) as follows: Brad Bristow CCAP 2407 J St., Ste. 301 Sacramento, CA 95816 Office of the Attorney General P.O. Box 944255 Sacramento, CA 94244 Joseph Kevin Dixon T-28096 CSP-Sacramento P.O. Box 290066 Represa, CA 95671-0066 Hon. Gary Friedman Superior Court 1415 Truxton Ave. Bakersfield, CA 93301 Susan D. Shors, Esq. 466 Green St., Ste. 300 San Francisco, CA 94133 Sharon Wrubel, Esq. P.O. Box 1240 Pacific Palisades, CA 90272 James Faulkner, Esq. 1825 18th St. Bakersfield, CA 93301 District Attorney Attn: Cynthia Zimmer 1215 Truxton Ave. Bakersfield, CA 93301 Fifth District Court of Appeal 2424 VenturaSt. Fresno, CA 93721 Each envelope was then, on January _, 2013, sealed and deposited with the United States Postal Service at Oakland, California, in the County in which I am employed, with the first class postage thereon fully prepaid. I declare under penalty of perjury that the foregoing is true and correct. Executed at Oakland, California, this _— day of January 2013. Joseph Shipp Declarant