PEOPLE v. MUHAMED (1995)

OPINION

In People v. Olguin (1994) 31 Cal.App.4th 1355, 1383–1384, 37 Cal.Rptr.2d 596, we determined the currently charged offense can be considered as one of the offenses establishing a pattern of criminal gang activity under the enhancement provision contained in Penal Code section 186.22.¹  We now decide whether the requisite pattern may be proven by relying exclusively on the currently charged offenses.   For reasons we now explain, we conclude the answer is yes.

I

One afternoon, Usumang Muhamed and other members of the Fullerton Boys gang attacked Angel Gonzalez on his way home from school.   Gonzalez belonged to a gang called Toker Town and had exchanged hostilities with Muhamed's group earlier that day.   During the attack, the Fullerton Boys knocked Gonzalez to the ground and repeatedly kicked him.   Muhamed then pulled a handgun and fatally shot Gonzalez.

In a bifurcated court trial, the prosecution presented evidence concerning an incident which occurred at a Jack-in-the-Box eatery in 1990, two years before the Gonzalez slaying.   Muhamed, his brother, and Oupekha Sundara were at the restaurant when another group confronted them and kicked their car.   Muhamed's group left the restaurant and was followed by a Ford Bronco.   When the Bronco pulled alongside Muhamed's car, Sundara drew a gun and opened fire on it.   Although a police officer testified the shooting appeared gang related, there was no evidence the Fullerton Boys existed when the incident occurred.

Muhamed was convicted of first degree murder and assault with a firearm.  (§§ 187, subd. (a);  189;  245, subd. (a).)  Allegations he personally used a firearm and committed the offenses for the benefit of a criminal street gang were also found true.  (§§ 12022.5, subd. (a);  186.22, subd. (b)(1).)   His appeal is limited to the sufficiency of the evidence to support the gang enhancement.

II

Muhamed contends the gang enhancement fails for lack of evidence the Fullerton Boys gang existed when the Jack-in-the-Box incident occurred.   The contention assumes the enhancement requires that at least one gang-related offense occurred prior to the events giving rise to the underlying convictions.   As we explain, that assumption is incorrect.

To prove a gang enhancement, the prosecution must establish a defendant committed the underlying offenses “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members [.]” (§ 186.22, subd. (b)(1).)   In pertinent part, a “criminal street gang” is defined as any “group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more [ ] criminal acts [including murder and aggravated assault] [ ] and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.”  (§ 186.22, subd. (f).)  A “pattern of criminal gang activity” means “the commission, attempted commission, or solicitation of two or more [such] offenses, provided at least one of those offenses occurred after the effective date of this chapter (September 23, 1988) and the last of those offenses occurred within three years after a prior offense, and the offenses are committed on separate occasions, or by two or more persons [.]”  (§ 186.22, subd. (e), italics added.)

Whether the charged offense can be considered as one of the offenses establishing a pattern of criminal gang activity was the issue before us in People v. Olguin, supra, 31 Cal.App.4th 1355, 37 Cal.Rptr.2d 596.   We first noted the courts in In re Lincoln J. (1990) 223 Cal.App.3d 322, 328, 272 Cal.Rptr. 852 and In re Jose T. (1991) 230 Cal.App.3d 1455, 1463, 282 Cal.Rptr. 75 had answered this question in the affirmative.   We then turned our attention to cases which Muhamed now cites as supporting the opposite conclusion.

While recognizing People v. Godinez (1993) 17 Cal.App.4th 1363, 22 Cal.Rptr.2d 164 prohibits offenses committed after the charged offense from being considered, we declined to read Godinez as requiring the pattern offenses to precede the current crimes.  (People v. Olguin, supra, 31 Cal.App.4th at p. 1383, 37 Cal.Rptr.2d 596.)   Nor did we find such a requirement in People v. Gamez (1991) 235 Cal.App.3d 957, 286 Cal.Rptr. 894.   There we said, “[A]n individual who violates subdivision (b) does so at the peril that the history of his gang will reveal the predicate offenses.”   (Id. at p. 976, 286 Cal.Rptr. 894.)   But this does not mean “that the described offenses be part of the past.  [ ] By definition, history is compiled after events.   Therefore a gang's history, when written or spoken, would always include the charged offense.”  (People v. Olguin, supra, 31 Cal.App.4th at pp. 1383–1384, 37 Cal.Rptr.2d 596, orig. italics.)   Clearly then, “a pattern of gang activity may include the charged crime.”  (Id. at p. 1384, 37 Cal.Rptr.2d 596.) ²

Moreover, nothing in the statute precludes the requisite pattern being established exclusively from the currently charged offenses.   As explained in In re Nathaniel C. (1991) 228 Cal.App.3d 990, 279 Cal.Rptr. 236, “To constitute a ‘pattern,’ the statute requires only that the offenses be ‘committed on separate occasions, or by two or more persons[.]’  [Citation.]   The use of the disjunctive in defining ‘pattern of criminal gang activity’ means a pattern can be established by two or more incidents, each with a single perpetrator, or by a single incident with multiple participants committing one or more of the specified offenses.”  (Id. at p. 1003, 279 Cal.Rptr. 236, second italics added.)

Despite this, Muhamed argues permitting the requisite pattern to be based solely on the underlying offenses renders the statute nonsensical and constitutionally suspect.   He contends it is impossible for a defendant to intentionally assist criminal gang activity unless the gang has a previous history of criminal conduct.   However, as explained, the requisite pattern of criminal gang activity may be supplied by proof of separate criminal episodes or a specified single incident.   In the latter instance, the necessary intent is established when the defendant helps his or her gang commit two or more enumerated offenses on a single occasion.   The defendant is simply not required to know about predicate offenses committed by other gang members.   (People v. Gamez, supra, 235 Cal.App.3d at pp. 973–976, 286 Cal.Rptr. 894.) ³

 Muhamed nonetheless argues requiring proof of prior gang activity is the safest way to ensure group association alone does not become punishable.   (See § 186.21 [gang enhancement is not intended “to interfere with the exercise of the constitutionally protected rights of freedom of expression and association.”].)   But as we explained in Gamez, “[O]ne is free to associate with whomever one wishes under the statute, so long as the primary purpose of associating one's self with the group is not to commit crime.   It is not the association with other individuals alone which section 186.22 addresses, but the association with others for the purpose of promoting, furthering or assisting them in the commission of crime.”  (People v. Gamez, supra, 235 Cal.App.3d at p. 971, 286 Cal.Rptr. 894, orig. italics.)   Because Muhamed went beyond mere association with his fellow gang members and proceeded to engage in the statutorily proscribed conduct, he cannot complain his free association rights have been violated.

 Muhamed also expresses due process and ex post facto concerns with our proposed interpretation of the statute.   Relying on Lanzetta v. New Jersey (1939) 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888, he claims, “If a pattern of criminal activity may be established by proof of the current offense alone, there is no time for a defendant to gain the knowledge, required by the due process clause, that he or she is acting on behalf of a criminal street gang, and no way for him [or her] to know that his [or her] conduct violates the law.”  (Fn. omitted.)

The statute at issue in Lanzetta criminalized gang status yet defined a gang only as “ ‘consisting of two or more persons.’ ”  (Lanzetta v. New Jersey, supra, 306 U.S. at p. 453, 59 S.Ct. at 619.)   Because the law failed to limit its scope to associations having as their primary activity the undertaking of illegal conduct, the Court found the provision unconstitutionally vague and indefinite.  (Id. at pp. 453–458, 59 S.Ct. at 619–21.)   In contrast, section 186.22 targets only those groups who meet specific statutory criteria and have engaged in particular criminal activity.   Thus, it does not possess the constitutional infirmities cited in Lanzetta.  (See People v. Gamez, supra, 235 Cal.App.3d at pp. 973–976, 286 Cal.Rptr. 894;  People v. Green (1991) 227 Cal.App.3d 692, 278 Cal.Rptr. 140.)

 Nor is our interpretation of the statute an unforeseeable judicial enlargement implicating the ex post facto prohibition.  (See People v. Davis (1994) 7 Cal.4th 797, 812, 30 Cal.Rptr.2d 50, 872 P.2d 591.)   Rather, our interpretation is derived from a plain reading of the statute and is consistent with decisional law predating Muhamed's current offenses.  (See In re Nathaniel C., supra, 228 Cal.App.3d at p. 1003, 279 Cal.Rptr. 236.)   Thus, Muhamed cannot escape the law's application on ex post facto grounds.

 Muhamed additionally asserts permitting a pattern of criminal gang activity to be shown by the current charge would conflict with the statutory definition of a criminal street gang.   He is concerned it would be difficult to prove the gang has “as one of its primary activities the commission of one or more of the [enumerated] criminal acts” (§ 186.22, subd. (f)) without proof of a historical pattern of gang conduct.   However, the definition of a criminal street gang includes any group whose members “engage in or have engaged in a pattern of criminal gang activity.”  (Ibid., italics added.)   This demonstrates the Legislature contemplated consideration of the current offense in assessing whether the statute has been satisfied.

 Lastly, Muhamed argues basing the gang enhancement on the underlying offenses would violate section 654, which provides, “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one[.]”  Although the Supreme Court has not decided whether section 654 applies in general to enhancements (People v. Jones (1993) 5 Cal.4th 1142, 1152, 22 Cal.Rptr.2d 753, 857 P.2d 1163), the section is inapplicable where “the underlying crime and the enhancement are not identical[.]”  (People v. Ross (1994) 28 Cal.App.4th 1151, 1159, 33 Cal.Rptr.2d 894.)   Because the gang enhancement requires the specific intent to promote criminal gang activity, it is readily distinct from the underlying offenses.   Therefore, section 654 is inapt.

 In sum, we conclude a “pattern of criminal gang activity” within the meaning of section 186.22, subdivision (e) may be shown exclusively from the currently charged offenses.   We further find the requisite pattern was established here because (1) two statutorily enumerated offenses (murder and aggravated assault) were committed against Gonzalez, (2) the offenses occurred after September 26, 1988 and within three years of each other, and (3) the offenses were committed by two or more members of the Fullerton Boys gang.   Accordingly, the record supports imposition of the criminal gang enhancement.

The judgment is affirmed.

FOOTNOTES

1.   All further statutory references are to the Penal Code.

2.   People v. Funes (1994) 23 Cal.App.4th 1506, 28 Cal.Rptr.2d 758, also cited by Muhamed, does not convince us otherwise.   In Funes, the court determined simply that the jury was not required to agree unanimously on which of several alleged offenses satisfied the pattern requirement.  (Id. at pp. 1525–1526, 28 Cal.Rptr.2d 758.)   The court did not state these offenses must precede the current offense.

3.   Contrary to Muhamed's claims, this interpretation is consistent with the legislative intent to eradicate criminal gang activity.  (See § 186.21.)   We see no reason to afford gangs one free criminal outburst before subjecting gang members to enhanced punishment.

SONENSHINE, Acting Presiding Justice.

WALLIN and RYLAARSDAM, JJ., concur.