PEOPLE v. JOHNSON

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The PEOPLE, Plaintiff and Respondent, v. Corey Ray JOHNSON et al., Defendants and Appellants.

No. F057736.

Decided: April 26, 2012

Susan D. Shors, under appointment by the Court of Appeal, for Defendant and Appellant Corey Ray Johnson. Joseph Shipp, under appointment by the Court of Appeal, for Defendant and Appellant Joseph Kevin Dixon. Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant David Lee, Jr. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian G. Smiley and Laura Wetzel Simpton, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

INTRODUCTION

Corey Ray Johnson, Joseph Kevin Dixon, and David Lee, Jr., (Johnson, Dixon, and Lee, respectively; collectively, defendants) were charged by first amended indictment as follows:

• Count one (Johnson and Lee only): March 21, 2007, attempted murder of Edwin McGowen, involving the personal discharge of a firearm proximately causing great bodily injury, and committed for the benefit of a criminal street gang (Pen.Code,1 §§ 186.22, subd. (b)(1)(C), 187, subd. (a), 664, 12022.53, subds. (d) & (e)(1)).

• Count two (all defendants): April 19, 2007, premeditated murder of James Wallace, involving the personal discharge of a firearm proximately causing death, committed by an active participant in and for the benefit of a criminal street gang, and constituting one of multiple murders (§§ 186.22, subd. (b)(1)(C), 187, subd. (a), 190.2, subds. (a)(3) & (22), 12022.53, subds. (d) & (e)(1)).

• Count three (all defendants): April 19, 2007, premeditated murder of Vanessa Alcala, involving the personal discharge of a firearm proximately causing death, committed by an active participant in and for the benefit of a criminal street gang, and constituting one of multiple murders (§§ 186.22, subd. (b)(1)(C), 187, subd. (a), 190.2, subds. (a)(3) & (22), 12022.53, subds. (d) & (e)(1)).

• Count four (all defendants): April 19, 2007, premeditated murder of Baby Boy Alcala, involving the personal discharge of a firearm proximately causing death, committed by an active participant in and for the benefit of a criminal street gang, and constituting one of multiple murders (§ 186.22, subd. (b)(1)(C), 187, subd. (a), 190.2, subds. (a)(3) & (22), 12022.53, subds. (d) & (e)(1)).

• Count five (all defendants): April 19, 2007, attempted murder of Anthony Lyons, involving the personal discharge of a firearm proximately causing great bodily injury, and committed for the benefit of a criminal street gang (§§ 186.22, subd. (b)(1)(C), 187, subd. (a), 664, 12022.53, subds. (d) & (e)(1)).

• Count six (Dixon only): April 19, 2007, possession of a firearm by one previously convicted of a felony, committed for the benefit of a criminal street gang (§§ 186.22, subd. (b)(1), 12021, subd. (a)(1)).2

• Count seven (all defendants): August 11, 2007, attempted murder of Adrian Bonner, involving the personal discharge of a firearm proximately causing great bodily injury, and committed for the benefit of a criminal street gang (§§ 186.22, subd. (b)(1)(C), 187, subd. (a), 664, 12022.53, subds. (d) & (e)(1)).

• Count eight (all defendants): August 11, 2007, discharge of a firearm at an occupied vehicle, involving the personal discharge of a firearm proximately causing great bodily injury or death, and committed for the benefit of a criminal street gang (§§ 186.22, subd. (b)(1)(C), 246, 12022.53, subds. (d) & (e)(1)).

• Count nine (all defendants): March 2, 2007–August 22, 2007, conspiracy to violate any or all of sections 186.22, subdivision (a), 187, 211, and 245, subdivision (a)(2), committed for the benefit of a criminal street gang (§ 182, subd. (a)(1), 186.22, subd. (b)(1)(C)).

• Count ten (Dixon only): August 9, 2007–August 18, 2007, possession of a firearm by one previously convicted of a felony, committed for the benefit of a criminal street gang (§§ 186.22, subd .(b)(1), 12021, subd. (a)(1)).

• Count eleven (all defendants): March 2, 2007–August 22, 2007, active participation in a criminal street gang (§ 186.22, subd .(a)).

It was further alleged that Dixon was previously convicted of a serious felony (§ 667, subd. (a)) that was also a strike (§§ 667, subds.(c)-(j), 1170.12, subds. (a)-(e)), and for which he served a term in prison (§ 667.5, subd. (b)). The People elected not to seek the death penalty against any defendant.

Following a joint jury trial, defendants were convicted as charged, and the murders were determined to be first degree. All special circumstance and enhancement allegations, including Dixon's prior convictions, were found to be true.3 Johnson's motion for a new trial was denied, and each defendant was sentenced to three consecutive terms of life in prison without the possibility of parole plus additional determinate and indeterminate terms, and was ordered to pay restitution and various fees and fines.

Defendants now raise numerous claims of error. With some minor exceptions and modifications, we affirm the judgments. We publish our discussion of what we believe to be a question of first impression: whether a defendant can properly be charged with conspiracy to actively participate in a criminal street gang. As we shall explain, such a charge is not permitted.

FACTS **

DISCUSSION 68

I–II ***

III

Count Nine

Count nine charged all three defendants with conspiracy to commit any or all of four separate criminal offenses—assault with a firearm (§ 245, subd. (a)(2)), murder (§ 187), robbery (§ 211), and active participation in a criminal street gang (§ 186.22, subd. (a)). No victim(s) or particular dates (other than March 2–August 22, 2007) were specified. The jury returned separate guilty verdicts, and separately found true one or more overt acts, with respect to each defendant and each object of the conspiracy. Defendants were each sentenced on count nine for conspiracy to commit first degree murder. They now challenge some of the verdicts and the sentences.

A. Conspiracy to Commit Robbery †

B. Conspiracy to Actively Participate in a Criminal Street Gang

Lee claims he was improperly charged with conspiracy to commit a violation of section 186.22, subdivision (a), active participation in a criminal street gang. He says this is an invalid crime because a violation of section 186.22 is itself a conspiracy, and “a conspiracy to commit a conspiracy is a nonsensical redundancy that results in unconstitutional vagueness.”158 He further says the subject of conspiracy relating to gangs and active participation is usurped by section 182.5, a specific statute on the subject. Because of the error, he says, the prosecution was permitted to introduce evidence of the codefendants' criminal activities and statements (Evid.Code, § 1223) that were unrelated to Lee or to the specific other crimes charged in the case. Johnson and Dixon join. The People say the offense is constitutionally valid, and in any event, the coconspirator hearsay exception applied even in the absence of a formal conspiracy charge.

1. Background

During the course of trial, some evidence that otherwise would have been limited to one or two of the defendants or as to purpose—or that might not have come in at all—was admitted against all defendants or for an unlimited purpose due to the existence of the conspiracy charge. Neither the prosecutor nor the court always specified which crime alleged as an object of the conspiracy was the basis for finding the evidence relevant or otherwise admissible. It is apparent, however, that some of the evidence was admitted against all three defendants pursuant only to the charged conspiracy to actively participate in a criminal street gang.

At one point, a discussion took place outside the jury's presence about whether the overt acts alleged in the indictment addressed the subjects of some of the testimony. During the course of the debate, counsel for Lee observed that since it took a minimum of three people to have a gang, it seemed redundant to allege, by means of a conspiracy charge, that Lee was part of what was already a group of more than two people doing something for the benefit of the gang. With counsel for the other defendants joining in his comments, counsel for Lee asked whether it was the position of the law “that everyone that is responsible for having committed 186.22(a) also be a conspirator for 186.22(a)?” Counsel for Lee argued that if there were the requisite number of people for a gang, then any time there were two individuals, they were necessarily conspiring to be in the gang. He asserted that allowing liability by duplicate means was unconstitutional. At that point, unfortunately, the discussion turned to hearsay exceptions and never fleshed out the question whether a gang is essentially a conspiracy and so whether alleging conspiracy to actively participate in a gang amounted to charging conspiracy to participate in a conspiracy.

2. Analysis

Section 182 proscribes, in pertinent part, conspiracy to commit any crime. (§ 182, subd. (a)(1).) “A conviction for conspiracy requires proof of four elements: (1) an agreement between two or more people, (2) who have the specific intent to agree or conspire to commit an offense, (3) the specific intent to commit that offense, and (4) an overt act committed by one or more of the parties to the agreement for the purpose of carrying out the object of the conspiracy. [Citations.]” (People v. Vu (2006) 143 Cal.App.4th 1009, 1024, 49 Cal.Rptr.3d 765; accord, People v. Morante (1999) 20 Cal.4th 403, 416, 84 Cal.Rptr.2d 665, 975 P.2d 1071.)

“The essence of the crime of conspiracy is the ‘evil’ or ‘corrupt’ agreement to do an unlawful act.” (People v. Marsh (1962) 58 Cal.2d 732, 743, 26 Cal.Rptr. 300, 376 P.2d 300.) The association of persons with an honest intent does not constitute a conspiracy (ibid.); rather, “conspiracy imports a corrupt agreement between not less than two with guilty knowledge on the part of each. [Citations.]” (Morrison v. California (1934) 291 U.S. 82, 92, 54 S.Ct. 281, 78 L.Ed. 664.) In this regard,

“[i]t is not necessary that two persons should meet together and enter into an explicit, express or formal agreement to commit a crime or that they should directly, by words or in writing, state what the unlawful scheme was to be and the details of the plans or means by which the unlawful combination was to be made effective. It is sufficient if they in any manner, or through any contrivance, positively or tacitly come to a mutual understanding to accomplish a common and unlawful design. It may result from the acts of the conspirators in carrying out a common purpose to achieve an unlawful end. [Citations.] A conspiracy may also result from actions of parties showing an intent to carry out a common purpose to violate the law and it is not necessary to prove an actual agreement to work together in performance of the unlawful acts. The existence of the assent of minds which is involved in the conspiracy may be ․ inferred by the jury from the proof of facts and circumstances which, taken together, apparently indicate that they are mere parts of the same complete whole. [Citations.]” (People v. McManis (1954) 122 Cal.App.2d 891, 899–900, 266 P.2d 134, italics added, disapproved on another ground in People v. Cox (2000) 23 Cal.4th 665, 675, 97 Cal.Rptr.2d 647, 2 P.3d 1189; accord, People v. Prevost (1998) 60 Cal.App.4th 1382, 1399, 71 Cal.Rptr.2d 487.)

Section 186.22, subdivision (a) defines a substantive crime and specifies punishment for “[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․”159 The gravamen of this offense is active participation in a criminal street gang (Albillar, supra, 51 Cal.4th at p. 55, 119 Cal.Rptr.3d 415, 244 P.3d 1062), with “active participation” defined as “ ‘involvement with a criminal street gang that is more than nominal or passive.’ [Citation.]” (People v. Castenada, supra, 23 Cal.4th at p. 752, 97 Cal.Rptr.2d 906, 3 P.3d 278.) Accordingly, the elements of the offense are “(1) active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; (2) knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and (3) the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang. [Citation.]” (Albillar, supra, 51 Cal.4th at p. 56, 119 Cal.Rptr.3d 415, 244 P.3d 1062.) A “pattern of criminal gang activity” is defined, in turn, as “the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more [enumerated] offenses, provided [the offenses occurred within a specified time period], and the offenses were committed on separate occasions, or by two or more persons ․“ (§ 186.22, subd. (e), italics added.)

Before one can actively participate in a criminal street gang, of course, there must exist a criminal street gang. Subdivision (f) of section 186.22 defines “ ‘criminal street gang’ “ as “any 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 criminal acts enumerated in ․ subdivision (e) [of the statute], 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.” (Italics added.) Evidence of past or present criminal acts listed in section 186.22, subdivision (e) is admissible to establish the “primary activities” requirement, although such evidence is not necessarily sufficient proof in and of itself. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323, 109 Cal.Rptr.2d 851, 27 P.3d 739.) “The phrase ‘primary activities,’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group's ‘chief’ or ‘principal’ occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group's members.” (Ibid., italics added)

Although section 186.22, subdivision (f) does not expressly require the existence of an agreement to commit any of the crimes enumerated in subdivision (e) of the statute, we fail to see how there could be an organization, association, or group of individuals having as one of its chief or principal occupations the commission of one or more of those crimes, without at least a tacit, mutual understanding that committing such crime(s) is the group's common purpose and that its members will work together to accomplish that shared design. Moreover, section 186.22, subdivision (a)'s requirement of involvement with the group that is more than nominal or passive, with knowledge that the members commit specified crimes, ensures that it is criminal conduct, not mere membership in the group, that is penalized. (See People v. Gardeley, supra, 14 Cal.4th at p. 623, 59 Cal.Rptr.2d 356, 927 P.2d 713.) Similarly, section 184's requirement of commission of an overt act by one or more of the parties to the agreement, ensures that no one is punished for “ ‘evil thoughts alone․’ [Citations.]” (People v. Russo (2001) 25 Cal.4th 1124, 1131, 108 Cal.Rptr.2d 436, 25 P.3d 641.)160

In light of the foregoing, we conclude that a criminal street gang is, at its core, a form of conspiracy. This being the case, by charging defendants in count nine with conspiracy to actively participate in a criminal street gang, the People essentially charged defendants with conspiracy to actively participate in a conspiracy.161

We have not been cited to, and our own research has not uncovered, any case in which a defendant has been charged with conspiracy to actively participate in a criminal street gang. Accordingly, we look to statutes involving other illicit organizations for guidance in determining whether what amounts to a redundant offense can ever be valid.162

The Racketeer Influenced and Corrupt Organizations Act (RICO; 18 U.S.C. § 1961 et seq.) defines “ ‘enterprise’ “ as including “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact․” (18 U.S.C. § 1961(4).) RICO makes it a crime, inter alia, for “any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.” (Id., § 1962(c).) Despite the potential redundancy, it is also a crime for any person to conspire to violate the foregoing provision. (Id., § 1962(d).) Under the statutes, the object of a RICO conspiracy is to violate the substantive RICO provisions, giving the law a much broader scope than would be achieved under traditional conspiracy law. (United States v. Elliott (5th Cir.1978) 571 F.2d 880, 902–903.)

The Smith Act (18 U.S.C. § 2385) makes it a crime to, inter alia, “organize [ ] or help[ ] or attempt[ ] to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any [specified] government by force or violence; or become[ ] or [be] a member of, or affiliate[ ] with, any such society, group, or assembly of persons, knowing the purposes thereof․” (Id., 3d par.) The Act further makes it a crime for two or more persons to conspire to commit such an offense. (Id., 5th par.) Despite the fact the “society, group, or assembly of persons” appears to constitute a conspiracy (see Board of Education v. Mass (1956) 47 Cal.2d 494, 498, 304 P.2d 1015 [Communist Party is continuing conspiracy against our government] ), and the United States Supreme Court's recognition that “there is no great difference between a charge of being a member in a group which engages in criminal conduct and being a member of a large conspiracy, many of whose participants are unknown” (Scales v. United States (1961) 367 U.S. 203, 226, fn. 18, 81 S.Ct. 1469, 6 L.Ed.2d 782), the law has not been invalidated due to redundancy (see generally id. at pp. 224–230).

RICO and the Smith Act contain clearly expressed congressional intent to allow prosecution of conspiracy to violate those acts' provisions despite the conspiratorial nature of the conduct and organizations at which those statutes are aimed. Assuming, arguendo, that the Legislature could properly criminalize conspiracy to actively participate in a criminal street gang, we find nothing to suggest it intended to do so by means of section 182, the general conspiracy statute. Absent such intent, and in light of the fact we are required to harmonize statutes both internally and with each other to the extent possible, and to avoid interpretations leading to absurd results (People v. Loeun, supra, 17 Cal.4th at p. 9, 69 Cal.Rptr.2d 776, 947 P.2d 1313), we conclude a defendant cannot properly be charged with conspiracy to actively participate in a criminal street gang/violate section 186.22, subdivision (a).

Our determination is supported by voters' enactment of section 182.5 as part of the initiative measure known as Proposition 21 (approved Mar. 7, 2000, eff. Mar. 8, 2000). The statute states: “Notwithstanding subdivisions (a) or (b) of Section 182, any 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, assists, or benefits from any felonious criminal conduct by members of that gang is guilty of conspiracy to commit that felony and may be punished as specified in subdivision (a) of Section 182.”

“ ‘We interpret initiative measures using the ordinary rules and canons of statutory construction. [Citation.] Thus, “our primary purpose is to ascertain and effectuate the intent of the voters who passed the initiative measure. [Citations.]” [Citation.]’ [Citation.]” (People v. Garrett (2001) 92 Cal.App.4th 1417, 1422, 112 Cal.Rptr.2d 643.) To determine the voters' intent, we consider the analyses and arguments in the official ballot pamphlet for the election at which the initiative was adopted. (People v. Hernandez, supra, 30 Cal.4th at p. 866, 134 Cal.Rptr.2d 602, 69 P.3d 446.) In addition, the electorate “ ‘ “are deemed to be aware of laws in effect at the time they enact new laws and are conclusively presumed to have enacted the laws in light of existing laws having direct bearing upon them. [Citations.]” ‘ [Citation.]” (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1067, 10 Cal.Rptr.2d 839.)

In the case of Proposition 21, the arguments contained in the ballot pamphlet did not specifically touch on the topic of conspiracy. According to the analysis of the measure by the Legislative Analyst, printed in the ballot pamphlet for the Primary Election of March 7, 2000, however, Proposition 21 would, among other things, “expand[ ] the law on conspiracy to include gang-related activities ․“ (Italics added.) In our view, this is an implicit recognition that the general conspiracy statute could not be applied to section 186.22, subdivision (a) because a criminal street gang was itself a species of conspiracy.

Defendants were improperly charged with conspiracy to actively participate in a criminal street gang.163 Accordingly, the verdicts finding each defendant guilty of conspiracy to actively participate in a criminal street gang/violate section 186.22, subdivision (a) must be reversed, and the jury's findings on the overt acts alleged in support of the conspiracy to actively participate in a criminal street gang/violate section 186.22, subdivision (a) must be vacated. Because we can tell the verdicts (and sentences) on count nine rested on the valid theory of conspiracy to commit murder, however, defendants' convictions and sentences on that count can stand. (People v. Guiton (1993) 4 Cal.4th 1116, 1129, 17 Cal.Rptr.2d 365, 847 P.2d 45.)

IV–VI ††

DISPOSITION

In People v. Corey Ray Johnson (Super. Ct. Kern County, 2009, No. BF122135A), the verdicts on count nine, insofar as they find Johnson guilty of conspiracy to commit robbery/violate section 211, and conspiracy to actively participate in a criminal street gang/violate section 186.22, subdivision (a), are reversed, and the true findings on the overt acts alleged in support thereof are vacated. Sentence on counts one, five, and seven is modified to a determinate term of seven years in prison on each count, exclusive of any enhancements. The trial court is directed to cause the sentencing minutes and abstract of judgment to include the notation that liability for victim restitution imposed pursuant to section 1202.4, subdivision (f), is joint and several. As so modified, the judgment is affirmed. The trial court is directed to cause to be prepared an amended abstract of judgment reflecting said modifications and corrections, and to transmit a certified copy of same to the appropriate authorities.

In People v. Joseph Kevin Dixon (Super. Ct. Kern County, 2009, No. BF122135B), the verdicts on count nine, insofar as they find Dixon guilty of conspiracy to commit robbery/violate section 211, and conspiracy to actively participate in a criminal street gang/violate section 186.22, subdivision (a), are reversed, and the true findings on the overt acts alleged in support thereof are vacated. Sentence on counts five and seven is modified to a determinate term of 14 years in prison (seven years doubled pursuant to the three strikes law) on each count, exclusive of any enhancements. The one-year enhancement imposed on count two pursuant to section 667.5, subdivision (b) is stricken. The five-year enhancements imposed on counts five and seven pursuant to section 667, subdivision (a) are stricken. The trial court is directed to cause the sentencing minutes and abstract of judgment to include the notation that liability for victim restitution imposed pursuant to section 1202.4, subdivision (f), is joint and several. As so modified, the judgment is affirmed. The trial court is directed to cause to be prepared an amended abstract of judgment reflecting said modifications and corrections, and deleting the reference to count nine in line 5. of the indeterminate portion of said abstract, and to transmit a certified copy of same to the appropriate authorities.

In People v. David Lee, Jr., (Super. Ct. Kern County, 2009, No. BF122135C), the verdicts on count nine, insofar as they find Lee guilty of conspiracy to commit robbery/violate section 211, and conspiracy to actively participate in a criminal street gang/violate section 186.22, subdivision (a), are reversed, and the true findings on the overt acts alleged in support thereof are vacated. Sentence on counts one, five, and seven is modified to a determinate term of seven years in prison on each count, exclusive of any enhancements. The trial court is directed to cause the sentencing minutes and abstract of judgment to include the notation that liability for victim restitution imposed pursuant to section 1202.4, subdivision (f), is joint and several. As so modified, the judgment is affirmed. The trial court is directed to cause to be prepared an amended abstract of judgment reflecting said modifications and corrections, and to transmit a certified copy of same to the appropriate authorities.

DETJEN, J.

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