PEOPLE v. ROBLES

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Court of Appeal, Second District, Division 1, California.

The PEOPLE, Plaintiff and Appellant, v. Ricardo Aguirre ROBLES, Defendant and Respondent.

No. B112363.

Decided: February 26, 1998

Gil Garcetti, District Attorney, and Brent Riggs and Natasha S. Cooper, Deputy District Attorneys, for Plaintiff and Appellant. Michael P. Judge, Public Defender, and Albert J. Menaster, Terry McQuigg, and Paula Montez, Deputy Public Defenders, for Defendant and Respondent.

INTRODUCTION

Defendant Ricardo Aguirre Robles was charged with felony carrying a loaded gun on his person while an active gang member, in violation of Penal Code section 12031, subdivisions (a)(1), (a)(2)(C).   Defendant moved in the municipal court to have the charge reduced to misdemeanor carrying a loaded gun on his person (id., subds. (a)(1), (a)(2)(F)) on the ground the evidence was insufficient to establish all elements of the felony, namely that he was an active gang member.   His motion was granted.

The People moved in the superior court to reinstate the felony complaint pursuant to Penal Code section 871.5.   Their motion was denied.   They appeal from the order denying their motion.   We affirm the order.

STATEMENT OF FACTS

Early in the evening on February 1, 1997, Officer Warren Tojong of the Los Angeles Police Department was on patrol in a marked police vehicle near the intersection of Sunset Boulevard and Hyperion Avenue.   He observed a group of individuals in “gang attire,” including defendant, standing around on Sunset Boulevard.   He saw defendant look in the direction of the police vehicle, reach into the waistband of his pants, remove a blue metallic-looking object resembling a gun and place the object in a planter.   Officer Tojong stopped and detained the individuals.   He recovered a loaded .22 caliber revolver from the planter, then placed defendant under arrest.

Officer Tojong interviewed defendant at the scene.   Defendant said he was a member of the M.A.R.-Mobbin At Risk-tagging crew.   Later, at the police station, defendant said he was a member of the La Mirada Locos street gang.   He explained he went “back and forth” between M.A.R. and the La Mirada Locos.   The two groups are not rival gangs;  their members associate with one another.

According to the gang files, Officer Tojong had been in contact with defendant the previous summer.   At that time, defendant admitted being “jumped in” as a member of the La Mirada Locos.   He said he “hung around” or “kicked back” with members of the gang.

The La Mirada Locos claim territory mainly in the Hollywood and east Hollywood areas.   They have been responsible for numerous crimes in the area, including thefts, narcotics activity, robberies, assaults and murders.

CONTENTION

The People contend the superior court erred in denying their motion to reinstate the felony complaint.   For the reasons set forth below, we disagree.

DISCUSSION

Penal Code section 871.5 provides that if a criminal action is dismissed by a magistrate, in whole or in part, the prosecutor may move in the superior court to reinstate the complaint, in whole or in part (subd. (a)), on the ground the magistrate erred in dismissing it as a matter of law (subd. (b)).  The superior court decides the motion based upon the record of the proceedings before the magistrate.  (Subd. (c).)   If the superior court denies the motion, its decision may be appealed by the People.  (Id., § 1238, subd. (a)(9).)

 On appeal, this court reviews the magistrate's ruling in the same manner as the superior court.  (People v. Slaughter (1984) 35 Cal.3d 629, 643, 200 Cal.Rptr. 448, 677 P.2d 854.)   The question is whether the magistrate erred in dismissing the complaint as a matter of law, in that the record contains sufficient facts as would lead a person of ordinary caution and prudence to believe and conscientiously entertain a strong suspicion that the defendant committed the crime charged.  (Ibid.;  People v. Childs (1991) 226 Cal.App.3d 1397, 1406-1407, 277 Cal.Rptr. 456.)   If the magistrate in dismissing the complaint made specific factual findings, this court is bound by those findings if they are supported by substantial evidence.  (Id. at p. 1406, 277 Cal.Rptr. 456.)

Penal Code section 12031 provides:  “A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street․”  (Subd. (a)(1).)   Unless other factors are present, the offense is a misdemeanor.   (Id., subd. (a)(2)(F).)   The offense is a felony, however, “[w]here the person is an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22, under the Street Terrorism Enforcement and Prevention Act [ (Pen.Code, § 186.20 et seq.) ].”  (Id., § 12031, subd. (a)(2)(C).)

Penal Code section 186.22 penalizes “[a]ny person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang․”  (Subd. (a).)  The section defines “criminal street gang” as an “ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the [specified] criminal acts ․, having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.”  (Subd. (f).)   The section does not define “actively participates.”

By holding defendant to answer for a misdemeanor, the magistrate found there was sufficient evidence defendant “carrie[d] a loaded firearm on his or her person or in a vehicle while in any public place or on any public street.”  (Pen.Code, § 12031, subd. (a)(1).)   The magistrate also did not question the sufficiency of the evidence to show that the La Mirada Locos, of which defendant was a member, was a “criminal street gang, as defined in subdivision (a) of Section 186.22.”  (Id., subd. (a)(2)(C).)   The magistrate found, however, there was insufficient evidence defendant was an “active participant” in the gang.  (Ibid.)

Officer Tojong testified that defendant told him he was “jumped in” as a member of the La Mirada Locos.   Defendant said he “hung around” or “kicked back” with members of the gang.   The magistrate did not believe this evidence established “that the defendant is an active participant ․ who with knowledge of what they do, furthers, promotes or assists in that” activity.   The magistrate clearly defined “active participation” as the activity criminalized in Penal Code section 186.22, subdivision (a).

In the construction of statutes, the primary goal of the court is to ascertain and give effect to the intent of the Legislature.  (Code Civ. Proc., § 1859;  People v. Gardeley (1996) 14 Cal.4th 605, 621, 59 Cal.Rptr.2d 356, 927 P.2d 713.)   The court looks first to the language of the statute;  if clear and unambiguous, the court will give effect to its plain meaning.   (Kimmel v. Goland (1990) 51 Cal.3d 202, 208-209, 271 Cal.Rptr. 191, 793 P.2d 524;  accord, California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th 342, 349, 45 Cal.Rptr.2d 279, 902 P.2d 297.)

 Where the court must construe the statute, it “ ‘turns first to the words themselves for the answer.’  [Citation.]”  (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.)   The words used should be given their usual, ordinary meanings and, if possible, each word and phrase should be given significance.  (Ibid.;  accord, Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.)   The words used “must be construed in context, and statutes must be harmonized, both internally and with each other, to the extent possible.”   (California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844, 157 Cal.Rptr. 676, 598 P.2d 836;  accord, Lungren, supra, at p. 735, 248 Cal.Rptr. 115, 755 P.2d 299.)   However, literal construction of the statute will not prevail if “contrary to the legislative intent apparent in the statute”;  construction consistent with legislative intent will prevail.   (Ibid.;  accord, DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601, 7 Cal.Rptr.2d 238, 828 P.2d 140.)

 Words and phrases are construed in light of the statutory scheme.  (People v. Hernandez (1988) 46 Cal.3d 194, 201, 249 Cal.Rptr. 850, 757 P.2d 1013;  Lungren v. Deukmejian, supra, 45 Cal.3d at p. 735, 248 Cal.Rptr. 115, 755 P.2d 299.)   They will not be construed in such a way as to render related provisions nugatory.  (Ibid.) Additionally, in enacting a statute, the Legislature is deemed to have been aware of statutes and judicial decisions interpreting them already in effect and to have enacted the statute in light of them.  (Hernandez, supra, at p. 201, 249 Cal.Rptr. 850, 757 P.2d 1013.)   Thus, where a word or phrase has been given a particular meaning in one part of the law, it should be given the same meaning in other parts of the law.  (Stillwell v. State Bar (1946) 29 Cal.2d 119, 123, 173 P.2d 313;  City of Sacramento v. State of California (1984) 156 Cal.App.3d 182, 197, 203 Cal.Rptr. 258.)

 In construing a statute the role of the court “is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted;  and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.”  (Code Civ. Proc., § 1858;  California Fed. Savings & Loan Assn. v. City of Los Angeles, supra, 11 Cal.4th at p. 349, 45 Cal.Rptr.2d 279, 902 P.2d 297.)   The court must give the statute a reasonable interpretation;  a literal interpretation which will lead to an absurd result will be avoided if possible.  (Verreos v. City and County of San Francisco (1976) 63 Cal.App.3d 86, 96, 133 Cal.Rptr. 649.)

Subdivision (a)(2)(C) was added to Penal Code section 12031 in 1996.  (Stats.1996, ch. 787, § 3.) Penal Code section 186.22 already was in effect at the time.  (Stats.1989, ch. 930, § 5.1, operative Jan. 1, 1993.)   In addition, the term “active participation,” used in both sections, had been construed with respect to section 186.22.

As previously stated, Penal Code section 186.22, subdivision (a), penalizes “[a]ny person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang․”  People v. Green (1991) 227 Cal.App.3d 692, 278 Cal.Rptr. 140 held that active participation must be more than mere membership, i.e., an intentional relationship to or association with an organization.  (At p. 699, 278 Cal.Rptr. 140.)   Criminal liability may not be predicated on membership alone.  (Ibid.)

The Green court's interpretation of section 186.22, subdivision (a), was that it made active participation in a criminal street gang criminal “under specified circumstances.”  (People v. Green, supra, 227 Cal.App.3d at p. 700, 278 Cal.Rptr. 140.)   The statute specifies those circumstances:  willfully promoting, furthering or assisting in felonious criminal conduct by gang members with knowledge that gang members engage in or have engaged in a pattern of criminal gang activity.  (Pen.Code, § 186.22, subd. (a).)  The court defined active participation as having “a relationship with a criminal street gang which is (1) more than nominal, passive, inactive or purely technical, and (2) the person must devote all, or a substantial part of his time and efforts to the criminal street gang.”  (Green, supra, at p. 700, 278 Cal.Rptr. 140.)

 The Legislature made carrying a loaded firearm on the person a felony “[w]here the person is an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22” when it added subdivision (a)(2)(C) to Penal Code section 12031.   It clearly was aware of the provisions of section 186.22 when it did so.   It also may be deemed to have been aware of the decision in Green, defining active participation for the purposes of that section.  (People v. Hernandez, supra, 46 Cal.3d at p. 201, 249 Cal.Rptr. 850, 757 P.2d 1013.)   We may presume the Legislature intended that the term be given the same meaning in both sections.  (Stillwell v. State Bar, supra, 29 Cal.2d at p. 123, 173 P.2d 313;  City of Sacramento v. State of California, supra, 156 Cal.App.3d at p. 197, 203 Cal.Rptr. 258.)

 Such a construction of Penal Code section 12031 is a reasonable one.  (Verreos v. City and County of San Francisco, supra, 63 Cal.App.3d at p. 96, 133 Cal.Rptr. 649.)   It does not penalize mere membership, which is impermissible.  (People v. Green, supra, 227 Cal.App.3d at p. 699, 278 Cal.Rptr. 140.)   Rather, it penalizes active participation under specified circumstances, i.e., when illegally carrying a loaded firearm on the person.   This is permissible.  (Id. at p. 700, 278 Cal.Rptr. 140.)   Accordingly, we give active participation the same definition for purposes of Penal Code section 12031 as it has for section 186.22, subdivision (a):  having “a relationship with a criminal street gang which is (1) more than nominal, passive, inactive or purely technical, and (2) the person must devote all, or a substantial part of his time and efforts to the criminal street gang.”  (Green, supra, at p. 700, 278 Cal.Rptr. 140.)

This would make the magistrate's definition of active participation erroneous.   Active participation does not necessarily require willful promotion, furtherance or assistance in felonious criminal conduct by gang members with knowledge that gang members engage in or have engaged in a pattern of criminal gang activity, although such behavior certainly could qualify as active participation.   This does not end the inquiry, however.   The question remains whether the record contains sufficient facts as would lead a person of ordinary caution and prudence to believe and conscientiously entertain a strong suspicion that defendant was an active participant in the La Mirada Locos street gang.  (People v. Slaughter, supra, 35 Cal.3d at p. 643, 200 Cal.Rptr. 448, 677 P.2d 854.)

 The evidence showed only that defendant was a member of the La Mirada Locos and he “hung out” with them.   There was no evidence he devoted a substantial part of his time and effort to the gang;  in fact, the evidence showed he went “back and forth” between the La Mirada Locos and his tagging crew, M.A.R. There was no evidence he ever engaged in any gang activities with other members of the La Mirada Locos.   On this record, the evidence is insufficient, as a matter of law, that defendant was an active participant in the La Mirada Locos.   Accordingly, the magistrate's dismissal of the felony allegations in the complaint was proper, and the superior court did not err in refusing to reinstate that portion of the complaint.  (People v. Slaughter, supra, 35 Cal.3d at p. 643, 200 Cal.Rptr. 448, 677 P.2d 854.)

The order is affirmed.

SPENCER, Presiding Justice.

ORTEGA and MIRIAM A. VOGEL, JJ., concur.

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