PEOPLE v. JOHNSON

Respondent’s Reply Brief on the Merits

Cal.April 18, 2013

SUPREME COURT COPY C O P Y In the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Case No. $202790 v. COREY RAY JOHNSONetal., Defendants and Appellants. Fifth Appellate District, Case No. F057736 Kern County Superior Court, Case Nos. BF122135A, BF122135B & BF122135C oe The Honorable Gary T. Friedman, Judge SureHECOURT PeD RESPONDENT’S REPLY BRIEF ON THE MERITS Arn 1 8 2013 KAMALAD. HARRIS Frank A Vetgure Clerk Attorney General of California . DeoutyDANER. GILLETTE Chief Assistant Attorney General _ DONALD DENICOLA Deputy State Solicitor General MICHAELP. FARRELL Senior Assistant Attorney General BRIAN R. MEANS Deputy Attorney General LAURA WETZEL SIMPTON Deputy Attorney General State Bar No. 197674 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 322-3674 Fax: (916) 324-2960 Email: Laura.Simpton@doj.ca.gov Attorneysfor Respondent TABLE OF CONTENTS Page ALQUMENE 0... cscecceseseeneesesesesesesesesesnsecseeeecacsssssesssssssesesstscsuevacaeecesarsacaesacas 1 Conspiracy to commit a gang crimeis a statutorily valid offensethat satisfies due process..........cccccceesssseeeeeee 1 A. Gang crime is not a COMSPIFAaCY .........cceeessecessseceeeseees 2 B. Conspiracy statute applies to gang crime OFFENSE ooo. eeseesseseceeeseseseesesessenacscsaesessessessecsseessseaes 5 C. Penal Code section 182.5 supports validity of conspiracy to commit a gang crime...........cece 10 D. Penal Codesection 186.26 supports validity of conspiracy to commit a gang crime... 12 E, Fair notice of elements satisfy due process............... 14 CONCIUSION 00...cece ceseeseseseseeeesesceseseesseacsevecscaeeesscsesececscsacasssssessereacereneeees 16 TABLE OF AUTHORITIES Page CASES Arden Carmichael, Inc. v. County ofSacramento (2000) 79 Cal.App.4th 1070...ccsceeeeeeeeseeeeens essnresneeertenaneseanecnneen 12 Delaney v. Superior Court (1990) 50 Cal.3d 785 uo... .eecesesesccserssesssssssescesesssscsecsesecseesesessessseeseaeees 11,12 Doble v. Superior Court (1925) 197 Cal. 556... eeeccecssceseccseeeeseeerscesesssessssssessesseessesecsesseseesessesesseneenegs 5 Holder v. Humanitarian Law Project (2010)130 S.Ct. 2705... eeeccesceesseesesessseessecsessesecesnecseneeseseeeseceesensssentens 14, 15 Tannelli v. United States (1975) 420 U.S. 770 woecceececsescssescescseseescsesecsssscersececaseeseseesessesenensensnesaeenerees 9 In re Jorge G. (2004) 117 CalApp.4th 931 oo. ssecesssesssscssecesssescsesesessenersresseueseeeraes 11 Inre Williamson , (1954) 43 Cal.2d 651eeecseseesssersseresscsssseseeeenessenecsseeeeensnessensens 5, 6,7 Peoplev. Albillar (2010) 51 Cal.4th 47oossecseseteesscsssscssssecsesecseseesssssceeceessesessesaeneenenes 11 People v. Castenada | (2000) 23 Cal.4th 743 oo. ecsesescsscssssessessesesssesssesseesseeecsensessnenessstennearees 15 People v. Chardon (1999) 77 Cal.App.4th 205 0... ecessseesceseesserseseenseseesenectecsctesesneerenesnenees 6, 7 People v. Cortez | (1998) 18 Cal.4th 1223 000.sesseeneesscesceseenesnecenseneeseeateatesnesnsanseassaneassnssensees 4 People v. Durham (1969) 70 Cal.2d 171 eeeeceeessesscsessesscssssessensenesseneesscseeeesessesensenseeeneena 3 People v. Homick | (2012) 55 Cal.4th 816... ccccsessssssssesscssssseessseesesessesesseseesseeesseenneneesees 4 il People v. Iniquez (2002) 96 CalApp.4th 75 oo. eccccccsssessssscsescscscscscscssscscsvecevsnecsusecacetsvatevacacaes 8 People v. Larsen (2012) 205 Cal.App.4th 810... ccccccscsscscssscscscscscsssessevecsvsesvsusecesstesetaeeeens 13 People v. Lee (2006) 136 Cal.App.4th 522 oo. ccccccccssssesssesescssscssscssscssscsesesesecaversnavananecaes 9 People v. McCall (2013) 2013 WL 1140380 ooesesecsesesessescsssescecsscscscscssssscsesessesucacaseeseeees 6 People v. Mesa (2012) 54 Cal4th 19disececcesesescsesssesescscsscssscscsvescavecsesscsesteecaveraveees 1 People v. Murphy (2011) 52 Cal.4th 81 icccccecsesesesesssescseecssevsssessssssesssesssecscsnststaeesees 5,7 People v. Powers (2004) 117 Cal.App.4th 29] occccsccsessscscesesscsessesesesseessssseststsvsessevseevers 6 People v. Rodriguez ~ (2012) 55 Cal.4th 1125ieccesesesscssesescscscscscersvscassesestssscsesseasacevans 2, 3,4 People v. Swain (1996) 12 Cal.4th 593 ooececesssssetesssesesssescsssssssesssesesssessesesecseanseeeeeaes 7,8 Professional Engineers vy. Dept. ofTransportation (1997) 15 Cal4th 543 ooecsesssssssescssssescscscscssscsvscscacavavssssseesesusecenerees 14 Salinas v. United States (1997) 522 U.S. 52 voces cecsssceccsesscssseceresssesssssecsscseccsssssasesessecssseuersseuseseeees 8 San Francisco Taxpayers Assn. v. Board ofSupervisors (1992) 2 Cal4th 571occeesesscsesesesesssssscscssscssssscesessssscsevsesesaseesecaeetees 11 Scales v. United States - (1961) 367 U.S, 203 wie cccccsssseceseccesscsecsssessscesecesssessseesseseeecesertsesenece 16 Stone Street Capital, LLC v. Cal. State Lottery Com’m (2008) 165 Cal.App.4th 109 oo. ccecesssscssssssscssscssssssssssssststsesecesssacetscsees 10 United States v. Brandao (1st Cir. 2008) 539 F.3d 44.0eeeseseseuceceuesscececstaresesetecettetcessensuanes 15 United States v. Harris (10th Cir. 2012) 695 F.3d 1125 woo ciccccccccsssssccsecssscscsssscsssssescsessessecessesecseese 9 ili STATUTES 18 United States Code § 1962)... ceeeccccscssccscesseccetscesecscserseeerscessesesesecseescascsecsessseessesseseeneeenseeeseensens 8 Penal Code § 182ee cecccsecsececsececreseeseeeseteceseceeseneeseeesssessusessseeensecssesesenseeseeeseeseneespassim § 182, subd. (€)(1).... ee eeeeceeteesesseeessssseesesseessceeceseseessesssesesseeseeseesnaesnesenesees 5 § LB6.2Q1 eeccccccccceesecsceseeseeesececseeeeseesecseesessceesesseseesessessssecseesssseeseessneeces 14 § 186.22 ooeccccccccceseceecsceceeesserseseneeeeeseesseescnecssssnssseesscesseesenesseenesies 1,5, 9, 12 § 186.22, Subd. (a) cece eeeseeteeteeseesssesasenseersessesteeeeeneesteeseeeesessanerenespassim § 186.26 oo cccccccccecscsscesensscenseceersenecstssessensssseseereasesesssnecssssesecaeesaseeeeeens 12, 13 § 186.26, SUDA. (a)... eee ceeeeeseeseeesesseeseeseesseeessecsseneesseesaesesseseseserseeeessassneenes 12 § 186.30, subd. (6)(3) oo. eeceeeceeesetscsscssceesscsseeeesenecseeseresseesseasseeneeeseneseeeats 11 § 182.5ee cccccscseceseeeceeeseeseeeeeetersesenssssasssescseeseeseneesseaseeesessesesanes 2, 10, 11,12 § 653f, subds. (€)-(f) ee eeeceeeceseeseeeeescssssessescseseeeseceesenensesesesseneesesteeetereees 13 OTHER AUTHORITIES CALCRIM NO. 1400 occ ceccceceececsnccccssscsccsscececesseeecceessueesesseeeceseecuateceseneceeesteeseesneees 5,14 NO. 415 coececccceeccescecccsscsecscccessscesseccessesesssneessneceseaesecnaeeesnsesensenessseusseesneaees 4,14 NO. 441 coccceecccccccessccccssscecescccsesscssececsseeesseneessenecseseesceucesessecessarereseeasecseaeeenea 13 iv Respondentoffers this Reply to the AnswerBriefs filed by defendants Joseph Dixon, David Lee, Jr., and Corey Ray Johnson. In it, respondent addresses any neworsignificant argumentsraised in the AnswerBriefs. Forall other matters not specifically addressed herein, respondentrelies upon the arguments and authority presented in the Opening Brief on the Merits. ARGUMENT CONSPIRACY TO COMMIT A GANG CRIMEIS A STATUTORILY VALID OFFENSE THATSATISFIES DUE PROCESS Asnoted in the Opening Briefon the Merits (ROBM1, fn. 1), respondent used—andcontinuesto use—theshorthand term of “gang crime”to refer tothe substantive offense created by subdivision (a) of Penal Codesection 186.22. That gang crime is defined as (1) active participation in a criminalstreet gang, (2) with knowledgeofthe gang members’ pattern of criminal activity, and (3) willful promotion, furtherance or assistance of any felonious criminal conduct by members of that gang. (People v. Mesa (2012)54 Cal.4th 191, 197.) Inusing this shorthand, which wasoriginally employed by this Court in Mesa (id. at 196), respondent does not“ignore” or “conflate” the first two elements (LAB 23-25); nor does respondent suggest that the third element must be | gang-related (DAOB9, 25, fn. 3). Instead, this convenient terminology recognizes that a violation of section 186.22(a) requires not only the defendant’s active participation in a knownstreet gangbutalso the defendant’s furtherance of felonious conduct by membersofthat gang. (Pen. Code, § 186.22, subd. (a); Mesa, at pp. 196-197.) As argued in the Opening Brief on the Merits, Penal Code sections 182 and 186.22 cumulatively apply to proscribe, as a separate offense, conspiracy to commit a gang crime. Asis plain from those provisions, a personis guilty of this offenseif (1) he intentionally enters into an agreement with another person to commit a gang crime byactively participating in a known criminalstreet gang while promoting felonious conduct by its members, (2) he specifically intends to commit the gang crimeat the time of entering into the agreement, and (3) either he or another party to the agreement commits an overt act in furtherance ofthe conspiracy. (Pen. Code, §§ 182, 186.22, subd.(a).) Conspiracy to commit a gang crimeandthe target gang crimeare not duplicative offenses, as each may be committed without necessarily committing the other. Moreover, recognition of conspiracy to commit a gang crime as an independent offense is not barred by any statute, including Penal Codesection 182.5. Finally, the elements for the offense of conspiracy to commit a gang crime are plainly understandable in accordance with due process. Accordingly, contrary to the Court of Appeal decision (Opn.at 308), this offense constitutes a valid crime. (ROBM 5-27.) A. Gang CrimeIs Not a Conspiracy All three defendants cite to this Court’s recent decision ofPeoplev. Rodriguez (2012) 55 Cal.4th 1125, which was decided after respondent filed the Opening Brief on the Merits, to support their position that a gang | “crime “essentially” constitutes a conspiracy by requiring an agreement among its members to engagein felonious criminal conduct,thereby rendering a conspiracy to commit a gang crime a redundantoffense. (LAB 15-18; JAB 9-10; DAB 14-15, 19.) Respondententirely disagrees with this interpretation. In Rodriguez, this Court determinedthat the “plain meaning of [Penal Code] section 186.22(a) requires that felonious criminal conduct be committed by at least two gang members, one ofwhom caninclude the defendantifhe is a gang member.” (People v. Rodriguez, supra, 55 Cal.4th at p. 1132.) Thus, a gang member who commits a felony while acting alone does not also commit a gang crime undersection 186.22(a), even if the underlying felony “emboldens fellow gang members to commitother, unspecified crimes in the future....” (/d. at p. 1137.) As support for its conclusion, this Court observed that the Legislature intended section 186.22(a) “to punish gang members whoacted in concert with other gang members in committing a felony regardless of whether such felony was gang-related.” (/d. at p. 1138, emphasis in original.) In other words, “section 186.22(a) reflects the Legislature’s carefully structured endeavor to punish active participants for commission of criminal acts done collectively with gang members.” (Jd. at p. 1139, emphasis in original.) Significantly, Rodriguez does not transform a gang crimeinto a conspiracy offense merely because its commission requires the participation oftwo or more gang members engagedin felonious conduct. Under Rodriguez, the defendant need only “know[ ] aboutand specifically intend[ | to further the criminal activity” of those gang members. (People v. Rodriguez, supra, 55 Cal.4th at p. 1135.) A defendant maysatisfy these requirements, which are tantamountto aiding and abetting, without also entering into an agreement beforehand,as required for conspiracy. (See Pen. Code, § 182 [defining conspiracy].) This distinction is important because, as this Court held long ago, “One mayaidor abetin the commissionofa crime without having previously entered into a conspiracy to commitit.” (People v. Durham (1969) 70 Cal.2d 171, 181.) Consequently, Rodriguez cannot be construed to engraft a new element onto Penal Code section 186.22(a) that would require an advance agreement between the defendant and atleast one other gang memberto engagein felonious criminal conduct. Thus, a gang crimeis not equivalent to a conspiracy. In a related vein, defendant Johnsonasserts that “active participation plus knowledgeofthe gang’s primary criminalactivities” constitutes an “implicit agreement to commit future crimes,” and thereby transforms a - gang crime into a conspiracy. (JAB 9-10.) Defendant Lee similarly contends that these elements of a gang crime “essentially” constitute a conspiracy. (LAOB 15-21.) But, by this reasoning, every active participant in a knownstreet gang would be guilty as a coconspirator for - every criminal offense committed by its members, even if the participant had no advance knowledgeofthat particular offense. Such a result cannot be squared with the conspiracy statute, which requires the defendant’s specific intent to agree to a particular offense, as well as the defendant’s specific intent that the agreed-upon offense actually occur. (Pen. Code, § 182; People v. Cortez (1998) 18 Cal.4th 1223, 1232.) By comparison, a gang crime does not require any such prior agreement to commit the felonious criminal conduct, nor any specific intent that the felonious conductactually occur. (Pen. Code, § 186.22, subd.(a); People v. Rodriguez, supra, 55 Cal.4th at pp. 1132-1133.) Instead, a gang crime merely requires the defendant’s knowledge of the gang members’ criminal activity and a specific intent to further that criminal activity. (People v. Rodriguez, supra, at 1135.) Far from conducting an “overly technical parsing”ofthe statutory language (LAB 19), respondent simply construes these statutes as written. Defendant Dixonalternatively suggests that the offense of conspiracy doesnot actually require an agreement, only a “mutual tacit understanding to commit an unlawful design,” which he contendsis equivalent to the gang crime elements of active participation and knowledge. (DAB 11-12.) However, as this Court aptly noted, “the very crux[ ] of a criminal conspiracyis the evil or corrupt agreement.” (People v. Homick (2012) 55 Cal.4th 816, 870.) While the agreement for a conspiracy need not be express, the agreementitself must actually exist. (Pen. Code, § 182; CALCRIM No. 415.) By comparison, a gang crime does not require the existence of any agreement, whether express or implied, to commit felonious conduct. (Pen. Code, § 186.22, subd. (a); CALCRIM No. 1400.) Accordingly, these two offenses are not duplicative. B. Conspiracy Statute Applies to Gang Crime Offense Penal Codesection 182 defines a conspiracy as “two or more persons” who “conspire” to commit “any crime.” (Pen. Code, § 182, subd. (a)(1).) This Court has held that “the words ‘any crime’ should include all crimes— whether felonies or misdemeanors—whichare knowntothe law ofthis state, and whether defined and made punishable by the Penal Code or by any otherlaw orstatute of the state.” (Doble v. Superior Court (1925) 197 Cal. 556, 565.) Consequently, the conspiracy statute includes a gang crime as defined and made punishable by Penal Codesection 186.22(a). Defendant Lee claimsthat a gang crime must be exempted from the scope of the general conspiracy statute because Penal Codesection 186.22 is a “comprehensivestatute” intended to “supplant”all others. (LAB 27- | 32.) Respondent acknowledgesthat, under the Williamsonrule ofjudicial - interpretation,“if a general statute includes the same conduct as aspecial statute, the court infers that the Legislature intended that conductto be prosecuted exclusively under the specialstatute.” (People v. Murphy (2011) 52 Cal.4th 81, 86 [citing In re Williamson (1954) 43 Cal.2d 651, 654].) On the other hand,“if the more general statute contains an element that is not contained in the special statute and that element would not commonly occurin the context of a violation of the special statute,” then the Williamson rule does not apply. (Murphy, at p. 87.) Nonetheless, “[i]f it appears from the entire context that a violation of the ‘special’ statute will necessarily or commonly result in a violation of the ‘general’ statute, the Williamson rule may apply even though the elements of the general statute are not mirrored on the face of the special statute.” ([bid.) Lee’s claim fails under the Williamson rule. Both the “general” conspiracy statute (Pen. Code, § 182) and the “specific” gang crime statute (Pen. Code, § 186.22(a)) contain different elements not found in the other. Conspiracy requires a prior agreement to commit a particular offense, with specific intent to commit that offense, and the commission of an overt act by any memberofthe conspiracy. (Pen. Code, § 182.) A gang crime, however, requires the defendant’s ownactive participation in a gang, with knowledge of the gang’s pattern of criminal activity, and willful furtherance of another members’ felonious criminal conduct. (Pen. Code, § 186.22, subd. (a).) Given these different elements for both offenses, a violation of one will not commonlyresult in a violation of the other. (See, e.g., People v. McCall (2013) ___— Cab.Rptr.3d__, 2013 WL 1140380, *6 [Williamson rule inapplicable to general felony statute prohibiting unauthorized practice of medicine and specific misdemeanorstatute prohibiting unlicensed midwife]; People v. Powers (2004) 117 Cal.App.4th 291, 298 [Williamson rule inapplicable to general felony statute prohibiting filing false instrument and specific misdemeanorstatute requiring accurate record offishing activities]; People v. Chardon (1999) 77 Cal.App.4th 205, 214 [Williamson rule inapplicable to general felony statute prohibiting false impersonation and specific misdemeanorstatute prohibiting false representation to arresting peace officer] ) Moreover, the specific offense of conspiracy to commit a gang crime requires the defendant’s agreement to knowingly andactively participate in a criminalstreet gang while furthering other members’ felonious conduct, with the specific intent that this gang crime actually take place, and the | commission of an overt act in furtherance. (Pen. Code, §§ 182, 186.22, subd. (a).) This offense may occur without the commission of a gang crime, such as wherethe gangitself is not yet established with the requisite number of predicate acts or members, or where the defendant’s own participation in the gangis insufficient, or where the defendant did not personally further the commissionofthe agreed-upon felonious conduct.! Similarly, this offense does not necessarily occur whenevera gang crimeis committed, such as where the active participant spontaneously aids and abets his fellow gang members’ felonious conduct without any prior agreement to do so. Given the entirely different elements and contexts for each ofthese offenses, the Williamson rule simply does not apply. (See People v. Murphy, supra, 52 Cal.4th at pp. 86-87 [explaining rule generally].) In other words, “the overlap between”these offenses “is not significant enough to support a conclusion that the Legislature intended” the specific statute “to preclude prosecutions under” the more general one. (People v. Chardon, supra, 77 Cal.App.4th at p. 214.) CitingPeople v. Swain (1996) 12 Cal.4th 593, defendant Lee argues that a gang crime must be exemptedfrom the conspiracy statute becausethe requisite mental states are patently inconsistent. (LAB 22-23, 29.) In Swain, this Court reversed a defendant’s conviction of conspiracy to commit second-degree murder based upon an implied-malice theory because “it would be illogical to conclude one can be found guilty of ‘ conspiring to commit murder” whenthe death was neveractually intended, but merely occurred during the defendant’s reckless commission of a dangerousact. (Swain, at p. 603, emphasis in original.) Defendants Lee ' Contrary to defendant Dixon’s assertion (DAB 20,fn.2), respondent does not contendthat an individual may be guilty of conspiracy to commit a substantive gang crime evenifhe lacks any knowledge ofthe organization’s criminal activity. Rather, as discussed infra, the defendant must be awarethat the gang either has engagedin a pattern of criminal activity or, if the gang is not yet formed, will engage in such activity after its formation. Thus, a defendantis not guilty of conspiracy to commit a gang crime if he unwittingly believes the organization is a legitimate enterprise. and Dixonsimilarly cite to People v. Iniquez (2002) 96 Cal.App.4th 75, 79, which reversed a defendant’s conviction of conspiracy to commit attempted murder because “[n]o one can simultaneously intend to do and notdo the same act, here the actual commission of a murder.” (LAB 22, 29, fn. 6, 31, fn. 7; DAB 20.) Notably, neither Swain nor /niguez relied upon a statutory interpretation ofthe conspiracy statute to invalidate the conviction. Both cases implicitly assumed that the conspiracy statute did, in fact, reach the target offense (i.e., second-degree murder and attempted murder). The result of applying the target offense to the conspiracy statute, however, was found to be logically invalid only because of the patently inconsistent specific intents. (People v. Swain, supra, 12 Cal.4th at p. 603; People v. | Iniguez, supra, 96 Cal.App.4th at p. 79.) . By comparison, no suchlogical inconsistency inheres to the specific intents required for conspiracy to commit a gang crime. It is not impossible for an individual to specifically intend to enter into an agreement to become a knowing and active participant in a street gang who will assist other gang members engage in felonious conduct, while also specifically intending to actually become a knowing andactive participant in a gang who will assist fellow gang members engagein felonious conduct. (Pen. Code, §§ 182, 186.22, subd. (a).) Thus, Swain and Iniguez are entirely distinguishable. Indeed, the requisite intent for conspiracy to commit a gang crimeis akin to the federal conspiracy RICO violation under 18 U.S.C. § 1962(d), which has been upheld as a constitutionally valid offense. (Salinasv. United States (1997) 522 U.S. 52, 64-65.) A conspiracy offense to violate RICO consists of the following three elements: | First: A conspiracy or agreement...existed between two or more personsto participate in the affairs of an enterprise that affected interstate commerce througha pattern of racketeering activity; . Second: that defendant deliberately joined or became a memberof the conspiracy or agreement with knowledgeofits purpose[;] and Third: the defendant agreed that someone,not necessarily the defendant, would commit at least two of the racketeering acts detailed in the indictment. (United States v. Harris (10th Cir. 2012) 695 F.3d 1125, 1131.) The “existence of an enterprise is not an element of § 1962(d) conspiracy to commit a substantive RICO violation.” (/d. at pp. 1131-1132.) Just like a conspiracy to commit a gang crime under Penal Codesections 182 and 186.22, the federal RICO conspiracy offense similarly requires the defendant’s intentional agreementto actively participate in a criminal organization, knowing that the organization either is, or will become, involved in criminalactivities. Defendant Dixon invokes Wharton’s Rule to prohibit a charge of conspiracy to commit a gang crime. (DAB 21-22.) Underthis rule, which is not constitutionally-compelled, “[a]n agreement by two personsto commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a natureas to necessarily require the participation of two persons for its commission.” (Jannelli v. United States (1975) 420U.S. 770, 773, fn. 5.) But this rule of statutory construction, which hasyet to be formally adopted by this Court, would not apply when, as even the Court of Appeal below recognized,“three or more persons are involved.” (Opn. 313, fn. 162.) Becauseall three defendants in this case were charged with conspiracy to commit a gang crime, Wharton’s Rule has no relevance whatsoever. (See People v. Lee (2006) 136 Cal.App.4th 522,fn. 7 [recognizing “exception” to Wharton’s Rule “where oneofthe actors joins with third persons on his side of the transaction”].) C. Penal Code Section 182.5 Supports Validity of Conspiracy to Commit a Gang Crime All three defendantscite to Penal Code section 182.5 as support for their position that the conspiracy statute may not apply to a gang crime. (DAB 17; JAB 12-13; LAB 39-39.) But the language of section 182.5, passed bythe electorate in 2000 as part of Proposition 21, actually bolsters respondent’s contrary interpretation. Penal Code Section 182.5 provides, Notwithstanding subdivisions (a) or (b) ofSection 182, any person whoactively participates in any criminalstreet gang... with knowledge that its members engage in or have engaged ina pattern of criminal gang activity...and who willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by membersofthat gang is guilty of conspiracy to commit that felony and may be punishedas specified in subdivision (a) of section 182. (Pen. Code, § 182.5, emphasis added.) Theitalicized languageis significant because it implicitly recognizes that the general conspiracy statute already applies to the proscribed behaviorthat includes a gang crime under Penal Code section 186.22(a). (See Stone Street Capital, LLC v. Cal. State Lottery Com’m (2008) 165 Cal.App.4th 109, 121, fn. 6 [generally recognizing that “notwithstanding”statutory language is “very comprehensive”and “signals a broad application overridingall other code sections unlessit is specifically modified by use of a term applying to only to a particular codesection or phrase”].) Thus, the statutory language of section 182.5 supports respondent’s view that the general conspiracy statute applies to a substantive gang crimeoffense. Lee insists otherwise based upon a statement from the Legislative Analyst in the ballot materials for Proposition 21. (LAB 39-40.) According to that statement, the ballot measure “expands the law on conspiracy to include gang-related activities....” (Ballot Pamp., Primary 10 (Elec. (March 7, 2000), Analysis by the Legislative Analyst, p. 46; Ex. A to Respondent’s Motion of Judicial Notice, emphasis added.) Lee emphasizes the Analyst’s use of the verb “to include” as confirmation that the law on conspiracy must have previously excluded the gang crime created by Penal Code section 186.22(a). (LAB 39.) This interpretation, however, ignores the Analyst’s use of the phrase “gang-related activities,” which plainly encompasses conduct well beyond section 186.22(a). (See, e.g., People v. ~ Albillar (2010) 51 Cal.4th 47, 59 [confirming that felonious conductfor gang crime need not be “gang related”’]; see also In re Jorge G. (2004) 117 Cal.App.4th 931, 941 [interpreting “gang-related crimes” for registration required by Pen. Code, § 186.30, subd. (b)(3), to include, at a minimum, all crimes committed for benefit of or in association with a criminal street gang].) Consequently, as explained in the Opening Brief on the Merits, the Analyst’s commentactually signifies that Penal Code section 182.5 expanded conspiracyliability by creating a broader version of vicarious liability for knowing andactive participants in a criminal street gang, who either aid or benefit from any felony committed by fellow members, even without anyprior agreement to do so. (ROBM16-25.) In any event, the Analyst’s statement in 2000 maynot be applied retroactively to rewrite the elements of the previously-existing statutory offense created by Penal Code sections 182 and 186.22(a). “The Legislative Analyst’s comments,like other materials presented to the voters, ‘may be helpful but are not conclusive in determining the probable 399meaningofinitiative language.’” (San Francisco Taxpayers Assn. v. Board ofSupervisors (1992) 2 Cal.4th 571, 580.) Such comments are certainly less helpful when determining the probable meaning ofother statutes already enacted by the Legislature. (See Delaney v. Superior Court (1990) 50 Cal.3d 785, 800-801 [explaining that “the legislative history ... could, as a matter of logic, reflect only the Legislature’s intent,” which “would not 11 provide...any guidanceasto the voters’ subsequent intent” when approving its “constitutional counterpart” by ballot measure].) While courts generally “presume the voters understoodthe state of the law at the time they voted on [a] Proposition [ ], there is no corresponding presumption that the _ Legislative Analyst understoodthe state of the law or practice.” (Arden Carmichael, Inc. v. County ofSacramento (2000) 79 Cal.App.4th 1070, 1076.) Accordingly, any “incorrect information provided by the Legislative Analyst” that appears in the ballot must be disregarded in favor of the “plain meaning”of the provision. (/bid.; see also Delaney,at pp. 802-803 [“Statutory intent is an aid to resolving ambiguity in statutes, not an excuse to rewrite them”’].) Because the plain meaning of sections 182, 182.5, and 186.22 all support respondent’s view that conspiracy to commit a gang crimeis a statutorily valid offense, any contrary suggestion by the Analyst must be dismissed. D. Penal Code Section 186.26 Supports Validity of Conspiracy to Commit a Gang Crime Defendant Lee notes that Proposition 21 also created, in addition to Penal Code section 182.5, a provision in Penal Code section 186.26 that makesit a felony to solicit or recruit another person to become an active participant in a criminal street gang. (LAB 39.) Section 186.26, which has since been technically revised, provides in relevantpart: Anyperson whosolicits or recruits another to actively participate in a criminal street gang, as defined in subdivision (f) of Section 186.22, with the intent that the person solicited or recruited participate in a pattern of criminal street gang activity, as defined in subdivision (c) of Section 186.22, or with the intent that the person solicited or recruited promote, further, or assist in any felonious conduct by membersofthe criminal street gang, shall be punished by imprisonmentin the state prison for 16 months, or two or three years. . (Pen. Code, § 186.26, subd.(a).) 12 Penal Code section 186.26 implicitly confirmsthe validity of a charge of conspiracy to commit a gang crime. Solicitation, like conspiracy, requires proofof the defendant’s specific intent to commit the underlying offense. (People v. Larsen (2012) 205 Cal.App.4th 810, 825.) The solicitation offense is complete once the defendant communicatesthat intent to another person, whereas conspiracy additionally requires an agreement between the defendant and the other person, plus the commission of an overt act.bid.) Accordingly, a defendantis guilty of solicitation under section 186.26 if he urges another personto join a , criminal street gang in orderto assist felonious conduct by its members. But, if that other person actually agrees and then commits an overt act, they are both guilty of conspiracy to commit a gang crime under Penal Code sections 182 and 186.22(a). California law prohibits only the solicitation of certain enumerated offenses, including perjury, robbery, rape, and murder. (Pen. Code, § 653f, subds.(a)-(f); CALCRIM No.441.) This list does not include a gang crime as defined by Penal Codesection 186.22(a). Consequently, absent the electorate’s adoption of Penal Code section 186.26, solicitation to commit a gang crime would remain unpunished. | By comparison, California’s broad conspiracystatute includesall crimes, including a gang crime. (Pen. Code, §§ 182, 186.22, subd. (a).) As a result, there was no needforthe electorate to adopt a similarly specific statute for conspiracy to commit a gang crime. Finally, the solicitation offense of Penal Code section 186.26 does not renderthe related offense of conspiracy to commit a gang crime somehow redundant or ineffectual. The latter ensures criminal culpability for a willing recipient of the recruiter’s proposal. Accordingly, section 186.26 bolsters respondent’s view that conspiracy to commit a gang crimeis a statutorily valid offense. 13 E. Fair Notice of Elements Satisfy Due Process All three defendants maintain that a charge of conspiracy to commita gang crimeis too vague and amorphousto satisfy due process. (DAB 13- 15, 26; JAB 9-15; LAB 44-45.) But, as explained in the Opening Brief on the Merits (ROBM 25-27), this offense plainly consists of the following elements: (1) the defendant actually agreed with another person to commit a gang crime by actively participating in a knowncriminalstreet gangto assist felonious conduct by its members, (2) the defendant specifically intended to commit this gang crimeat the time of entering the agreement, and (3) either the defendant or another party to the agreement committed an overt act in furtherance of the conspiracy. (Pen. Code, §§ 182, 186.22, subd. (a); CALCRIM Nos. 415 & 1400.) These elements, “as applied to the particular facts at issue” in this case, wherein all three defendants jointly committed escalating violent offenses directed at rival gangs according to an elaborate plan, unequivocally “provide a person of ordinary intelligence fair notice of whatis prohibited....” (Holder v. Humanitarian Law Project (2010) US. __, 130 S.Ct. 2705, 2718-2719.) Defendant Johnson contendsthat “no substantial legal or social purposeis served by creating the crime of conspiracyto participate in a street gang.” (JAB 15.) But “[c]ourts do not sit as super-legislatures to determine the wisdom,desirability or propriety of statutes enacted by the Legislature.” (Professional Engineers v. Dept. ofTransportation (1997) 15 Cal.4th 543, 593.) Rather, “it is up to the legislatures, not courts, to decide on the wisdom andutility of legislation.” (/bid.) In any event, criminalizing conspiracy to commit a gang crime does serve an important purpose. Given the public-safety crisis caused by gangs, which embolden their members to commit crimesthat terrorize law-abiding citizens in their own communities (Pen. Code, § 186.21), this conspiracy offense helps ensure that California’s gang “net” is woventightly “to trap 14 even the smallestfish...” (United States v. Brandao(1st Cir. 2008) 539 F.3d 44, 53.) These “small fish” includes persons who agree to form a new criminalstreet gang, or who agree to join an established gang buteither are not yet active participants or have notyet assisted any felonious conduct. Becausethese personsare acting pursuant to an agreement with other willing participants to commit criminalacts, yet they would otherwise escape culpability under California’s other gangstatutes, the offense of conspiracy to commit a gang crime effectively promotes public safety. Finally, defendant Dixon suggests that a defendant may not be convicted of conspiracy to commit a gangcrimeif that defendantis not a sufficiently active participant for purposes of a gang crime because doing so would unconstitutionally punish “bare gang membership....” (DAB 19, 25.) However, Dixon maynot challenge the constitutionality of a statute to “imaginary cases” when his own conduct was “clearly proscribed”byit. (Holder v. Humanitarian Law Project, supra, 130 S.Ct. at p. 2719.) Furthermore, this Court has already concluded that an active participant need not even be a memberof a gangfor a gang crime convictionto satisfy due process becausethis offense additionally requires the defendant’s furtherance of felonious conduct by fellow members. (People v. Castenada (2000) 23 Cal.4th 743, 747 [defining“actively participates” as “meaning involvement with a criminal street gang that is more than nominal or passive”].) And, regardless of whether the defendant qualifies as an active participant or formal member, he may be found guilty of conspiring to commit a gang crimeonlyifhe specifically and knowingly agreed with another person to actively participate in a gangto assist felonious conduct by its members, with the specific intent to actually becomeanactive participant in a gangto assist felonious conduct by its members, and an overt act is committed in furtherance of this agreement. (Pen. Code, 15 §§ 182, 186.22, subd. (a).) These elements amplysatisfy the constitutional requirementof guilt based upon personal conduct rather than mere association with a criminal organization. (See Scales v. United States (1961) 367U.S. 203, 220-230 [rejecting constitutional bar to punishing a defendant whois an active member in a criminal enterprise, so long as the defendantactually knowsofthe group’s criminal nature and specifically intents to promoteits criminal purpose].) Overall, the valid criminal offense of conspiracy to commit a gang crime, as plainly defined by Penal Code sections 182 and 186.22(a), satisfies all constitutional concerns. CONCLUSION For the foregoing reasons, respondentrespectfully asks this Court to reverse the appellate court’s judgment andreinstate the defendants’ conviction on count 9 for conspiracy to commit a gang crime. Dated: April 16, 2013 Respectfully submitted, KAMALAD. HARRIS Attorney General of California DANE R. GILLETTE : Chief Assistant Attorney General MICHAELP. FARRELL Senior Assistant Attorney General DONALD DENICOLA Deputy State Solicitor General - BRIAN R. MEANS Deputy Attorney General fou.lubSf LAURA WETZEL SIMPTON Deputy Attorney General Attorneysfor Respondent LWS:tmk SA20093 12202 31650259.doc 16 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S REPLY BRIEF ON THE MERITSuses a 13-point Times New Romanfont and contains 4,685 words. Dated: April 17, 2013 KAMALA D. HARRIS Attorney General of California foulh SA LAURA WETZEL SIMPTON Deputy Attorney General Attorneysfor Respondent DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Johnsonetal. No.: 8202790 I declare: I am employed in 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 business practice 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, correspondencé placed‘in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On April 17, 2013, I served the attached RESPONDENT’S REPLY BRIEF ON THE MERITSbyplacing a true copy thereof enclosed in a sealed envelopein 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: Susan D. Shors Honorable Lisa Green Attorney at Law Kern County District Attorney 466 Green Street, Suite 300 1215 Truxtun Avenue, 4th Floor San Francisco, CA 94133 Bakersfield, CA 93301 (Counsel for appellant Johnson - 2 copies) : Kern County Clerk Joseph C. Shipp Kern County Superior Court Attorney at Law _ 1415 Truxtun Avenue, Suite 212 P.O. Box 20347 Bakersfield, CA 93301 Oakland, CA 94620 (Counsel for appellant Dixon - 2 copies) Central California Appellate Program 2407 J Street, Suite 301 Sharon G. Wrubel Sacramento, CA 95816 Attorney at Law P.O. Box 1240 Pacific Palisades, CA 90272 (Counsel for appellant Lee - 2 copies) I declare under penalty of perjury under the lawsofthe State of California the foregoing is true and correct and that this declaration was executed on April 17, 2013,at Sacramento, California. Declarant SA20093 12202 31667821.doc