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Court of Appeal, First District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Joseph Angel ABBATE, Defendant and Appellant.


Decided: December 03, 2020

Catherine White, San Diego, under appointment by the First District Court of Appeal for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Karen Z. Bovarnick, Deputy Attorney General for Plaintiff and Respondent.

A jury found defendant Joseph Angel Abbate guilty of second-degree murder (Pen. Code, § 187 1 ), conspiracy to commit a felony by active street gang participants (§ 182.5), and being a felon in possession of a firearm (§ 29800, subd. (a)(1)). On appeal, defendant argues: (1) the trial court erred by admitting evidence of a prior murder under Evidence Code section 1101, subdivision (b); (2) section 182.5, which criminalizes participation in a criminal street gang conspiracy, is void for vagueness and violates the principle of personal guilt; (3) Senate Bill No. 620 (2017–2018 Reg. Sess.) requires a remand to allow the court to exercise its sentencing discretion; and (4) Senate Bill No. 1437 (2017–2018 Reg. Sess.) requires reversal of his murder conviction.

In the published portion of this opinion, we reject defendant's challenges to section 182.5. In the unpublished portion, we conclude defendant's contentions regarding the prior murder evidence and Senate Bill No. 1437 (2017–2018 Reg. Sess.) are without merit but determine a remand is necessary in light of Senate Bill No. 620 (2017–2018 Reg. Sess.).

Factual and Procedural Background

The People charged defendant, Steven Cruz, and Ricardo Ochoa with the murder of Eduardo Ochoa (§ 187, count 1).2 The People alleged firearm enhancements (§ 12022.53, subds. (b)–(e)(1)) as to each defendant, and also alleged they committed the murder for the benefit of, at the direction of, and in association with a criminal street gang, namely, “Da Bay's Grimiest” also known as “DBG” (see § 186.22, subd. (b)(1)). The People additionally charged defendant and his codefendants with conspiracy to commit a felony by active street gang participants (§ 182.5; count 2), and charged defendant alone with being a felon in possession of a firearm (§ 29800, subd. (a)(1), count 3). As to the firearm possession count, the People alleged defendant committed the crime for the benefit of, at the direction of, and in association with DBG (§ 186.22, subd. (b)(1)).

Defendant's first trial took place in 2014. Ultimately, the jury could not reach a verdict on the murder charge, resulting in a mistrial on that charge. Moreover, while the jury found defendant guilty of the remaining counts and found true the gang enhancement (§ 186.22, subd. (b)(1)) accompanying the firearm possession count, the court granted defendant's motion for new trial as to the gang conspiracy count (§ 182.5). In sum, after the first trial defendant stood convicted of the section 29800 count with the attendant gang enhancement.

A second trial took place in 2016. The jury found defendant guilty of second-degree murder and found true the attendant gang enhancement (§ 186.22, subd. (b)(1)) and firearm enhancement (§ 12022.53, subds. (d), (e)(1)). The jury also found defendant guilty of the section 182.5 gang conspiracy count. The court sentenced defendant to a term of 15 years to life in prison for the murder count, plus a consecutive 25 years to life term for the attendant firearm enhancement. The court also sentenced defendant to a term of 15 years to life for the gang conspiracy count, but stayed its execution pursuant to section 654. Finally, the court sentenced defendant to a consecutive two-year term for the firearm possession count, plus three years for the attendant gang enhancement.

The following summary of the evidence at the second trial is not comprehensive but provides the necessary background and context to the issues raised on appeal.

In 2010, a child was shot through the front door of a house in Contra Costa County. That address belonged to defendant, and the minor victim (who survived) is related to both defendant and codefendant Steven, who is defendant's cousin. Defendant was at the house at the time of this shooting.

On April 11, 2012, around 12:30 p.m., B.O. was at home in San Pablo with her son, Eduardo.3 Eduardo was affiliated with the “Norteno” street gang. B.O. heard a loud noise, like a “boom.” Looking out of a window, she saw a small white car, like a Honda or a Toyota, “full of kids” looking at her house before driving away. She found Eduardo bleeding with a large wound in his chest, and he died in her arms. During their investigation, the police located one expended cartridge case near the sidewalk in front of the home and, during the autopsy, recovered a bullet from the victim's chest. B.O. identified codefendant Ricardo in a photo lineup as one of the people associated with the white car.4

Brian G. was the prosecution's principal witness.5 Brian G., who was in his early twenties at the time of trial, testified he was a member of a gang called “Varrio Frontera Locos” or “VFL” in his early teens and a member of the DBG “tagging crew,” but by his mid-teens he was not in or associated with any gang. Brian G. had known defendant since middle school.

The night before Eduardo's murder, Brian G. went to a party at the home of defendant's aunt in Richmond, where he hung out with defendant (also known as “Grams”), Ricardo (also known as “Rebz”), and Steven. Brian G., Ricardo, Steven, defendant, and some women ended up going to a hotel around the border of Richmond and El Cerrito in a white Toyota belonging to Brian G.’s then-girlfriend. They left the hotel the next day at around 10:00 a.m. Ricardo drove the men around in the white car, and they eventually went back to the home of defendant's aunt. There the men left Brian G. alone in the living room for 10 to 15 minutes before they left again, purportedly to buy alcohol and get money at Ricardo's sister's house. Ricardo said he wanted to drive, and Steven “called shotgun.” Brian G. sat behind the driver and next to defendant.

The men stopped at a liquor store, then drove by a house where defendant loudly said, “That's him” and “ ‘That's E.’ ” When defendant said this, the only person Brian G. could see was a male Hispanic who looked like he just stepped out of a house. After defendant said this, Ricardo—without prompting—stopped the car. Brian G. heard someone say, “ ‘He's a Dub boy,’ ” then, within seconds, Steven exited the car, walked within four to five feet of the male, and started “banging on” him by aggressively asking him if he was a “Dub boy.” The male looked afraid and denied being a “Dub boy.” After about a minute, Steven pulled out a gun and pointed it at the male, then Ricardo said, “Shoot that [racial slur],” and Steven shot him once in the chest. At this point the male ran back into the house, and Steven got back into the car. Ricardo drove them in a loop through Concord, before returning to Richmond.

Brian G. testified that defendant did not show any surprise or disapproval at what Ricardo said, nor surprise at Steven pulling a gun on the man, nor upset that Steven shot him. And during the drive afterward, defendant, Steven, and Ricardo appeared to be happy, listening to music and dancing like they “made a score.” Brian G. acknowledged that during an early videotaped police interview, he told the police that after the shooting the other man in the backseat—i.e., defendant—said something like, “What the F is going on.” When asked what he meant by this, and if this was an expression of surprise, Brian G. explained defendant was “like happy, shocked. You know, like he's the one that pointed him out.”

Brian G. testified that during the drive he asked the others why the victim was killed. Defendant responded that the victim had sent someone to kill him but the person mistakenly shot his niece in the face “through the window or something.”6 Brian G. also testified that when Steven seemed bothered after the shooting, defendant told Steven not to worry, and the “first time” he would get paranoid, but it would be okay. Defendant then talked about his own “first time” killing someone. Defendant said he was on the streets looking for “suckas” (meaning rival gang members), found someone on Dunn Avenue in Richmond, jumped out and said “ ‘DBG,’ ” then started shooting and the victim who got shot started screaming “ ‘Darkie.’ ”

Brian G. also testified that, during the drive, defendant took a phone call and told the person on the phone that Steven “ ‘got his feet wet.’ ” Phone records showed that about 20 minutes after the shooting, defendant's phone sent someone a text message stating, “Watch out for them suckas. It's hot.” According to the prosecution's gang expert, this was an alert to other gang members that a violent act was committed and to be on alert for retaliation from rivals.

The day after the shooting, Brian G.—who was still hanging out with defendant—drove under the influence of alcohol, got into a car accident, left the white car at the scene, and got a ride back to his then-girlfriend's house. Brian G. testified this was the last time he had contact with defendant.

Several weeks later, the police arrested Brian G. for drunk driving and for a hit-and-run and talked to him about the shooting. Brian G. told the police numerous untrue stories before telling them that he was present during the shooting, that Steven was the shooter, and that Ricardo was the driver. Even after this, however, he remained too scared to identify defendant. The day after his arrest, Brian G. finally identified defendant as the fourth person involved in the shooting by writing defendant's name on a piece of paper. The officer who took the identification testified that Brian G. was too scared to say defendant's name out loud and continued to refuse to do so even after making the identification.

The other evidence at trial included evidence that defendant, accompanied by Steven, sold a gun after Eduardo's murder that was later recovered and determined to be the murder weapon. There was evidence that while dusting for fingerprints in the white car the men had ridden in, the police found the letters “DBG” written, as if with a finger, on the inside of the windshield on the passenger side of the car, and the inside of the rear right passenger side window. Records for a cell phone number associated with defendant and police officer witnesses generally corroborated Brian G.’s testimony about the men's location around the time of the shooting.

The prosecution's gang expert provided details about DBG, including that it had a “serious” rivalry—meaning encounters would lead to assault or assault with a firearm on sight—with a subgroup of the Nortenos called the “Dub Boyz.” The expert testified, among other things, that defendant, Ricardo, and Steven were DBG members, and answered a hypothetical indicating defendant was a DBG leader. The expert opined that a subordinate who is “getting his feet wet” would not shoot someone in front of a gang leader without that leader's approval. A former DBG member testified that defendant was a DBG leader, and that defendant represented he founded the gang with a cousin.

The defense presented various witnesses to challenge the strength of the prosecution's case. In light of Brian G.’s testimony that he, defendant, Ricardo, and Steven drank alcohol and smoked marijuana the night before and the day of the shooting, and he was not completely sober throughout those days, the defense presented expert testimony on the impact of drugs and alcohol on human memory. During closing argument, defense counsel argued at length that Brian G. lied about defendant's involvement in Eduardo's shooting in order to get a plea deal. Defense counsel also tried to show weaknesses in the testimony of various prosecution witnesses.


A. Evidence Code Section 1101, Subdivision (b)**

B. Challenges to Section 182.5

Section 182.5 provides: “any person who actively participates in any criminal street gang, as defined in subdivision (f) of Section 186.22, with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, as defined in subdivision (e) of Section 186.22, 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.”7 This statute created a new form of conspiracy distinct from the traditional understanding of the crime and was intended to “ ‘expand[ ] the law on conspiracy to include gang-related activities.’ ” (People v. Johnson (2013) 57 Cal.4th 250, 261, 159 Cal.Rptr.3d 70, 303 P.3d 379, italics omitted.)

Defendant challenges section 182 on constitutional grounds, arguing the statute is void for vagueness. He additionally argues the statute impermissibly punishes persons based on mere affiliation with an organization without the requisite “personal guilt” described in Scales v. United States (1961) 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782 (Scales). We address these claims in turn below.

1. Vagueness

Defendant first contends the portion of the statute that punishes those who “willfully ․ benefit[ ] from any felonious criminal conduct by [gang] members” is void for vagueness on its face in violation of state and federal due process provisions. (§ 182.5.) More specifically, he claims the statute does not make clear “whether the defendant must have knowledge that the benefit he willingly and purposely received actually came from” felonious gang conduct. As an example, he asserts it is unclear if a defendant receiving stolen money from a gang member who robbed a bank could be liable “even if he had no knowledge of the bank robbery.” He also argues the statute does not make clear “whether the defendant needs to agree to or even know about the benefit he will receive before or during the commission of the underlying felony.”

Defendant further contends the statute is void for vagueness as applied. Similar to his facial challenge, he claims ordinary persons of common intelligence cannot understand the meaning of the statutory phrase “ ‘who willfully ․ benefits.’ ” We reject these contentions.

“The constitutional interest implicated in questions of statutory vagueness is that no person be deprived of ‘life, liberty, or property without due process of law,’ as assured by both the federal Constitution (U.S. Const., Amends. V, XIV) and the California Constitution (Cal. Const., art. I, § 7).” (Williams v. Garcetti (1993) 5 Cal.4th 561, 567, 20 Cal.Rptr.2d 341, 853 P.2d 507 (Williams).) To satisfy the dictates of due process, a criminal statute must satisfy two requirements. “First, the provision must be definite enough to provide a standard of conduct for those whose activities are proscribed․ [¶] Second, the statute must provide definite guidelines for the police in order to prevent arbitrary and discriminatory enforcement.” (People v. Heitzman (1994) 9 Cal.4th 189, 199–200, 37 Cal.Rptr.2d 236, 886 P.2d 1229; citations omitted Holder v. Humanitarian Law Project (2010) 561 U.S. 1, 18, 130 S.Ct. 2705, 177 L.Ed.2d 355 (Holder).)

“The starting point of our analysis is ‘the strong presumption that legislative enactments “must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears.” ’ ” (Williams, supra, 5 Cal.4th at p. 568, 20 Cal.Rptr.2d 341, 853 P.2d 507.) Moreover, it is settled that one “who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law.” (Village of Hoffman Est. v. Flipside, Hoffman Est. (1982) 455 U.S. 489, 494–495, 102 S.Ct. 1186, 71 L.Ed.2d 362 fn. omitted (Hoffman Estates); see Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1095, 40 Cal.Rptr.2d 402, 892 P.2d 1145.) We review the constitutionality of statutes de novo. (People v. Superior Court (J.C. Penney Corp., Inc.) (2019) 34 Cal.App.5th 376, 387, 246 Cal.Rptr.3d 128 (J.C. Penney Corp., Inc.).)

Defendant acknowledges the rule that a defendant who engages in conduct clearly proscribed by a law cannot complain of the law's vagueness as applied to the conduct of others. (Hoffman Estates, supra, 455 U.S. at p. 495, 102 S.Ct. 1186.) He also does not question the attendant rule that courts should first conduct an as-applied inquiry before addressing a facial vagueness challenge. (Ibid.; see J.C. Penney Corp., Inc., supra, 34 Cal.App.5th at pp. 400, 403–404 [observing Johnson v. United States (2015) 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 “did not put an end to the ‘as-applied inquiry first’ rule”], and cases cited therein; Kashem v. Barr (9th Cir. 2019) 941 F.3d 358, 376–377.) We thus proceed by first examining whether section 182.5 clearly proscribes defendant's conduct. We conclude it does.

The language of section 182.5 makes clear it punishes “an active gang participant with knowledge of other members’ pattern of criminal gang activity.” (People v. Johnson, supra, 57 Cal.4th at p. 262, 159 Cal.Rptr.3d 70, 303 P.3d 379.) It “does not require any prior agreement among the conspirators to promote, further, or assist in the commission of a particular target crime.” (Ibid.) Moreover, it “brings within its ambit not only a gang member who promotes, furthers, or assists in the commission of a felony” but also “an active and knowing participant [in a criminal street gang] who merely benefits from the crime's commission, even if he or she did not promote, further, or assist in the commission of that particular substantive offense.” (Ibid.) The statute requires that a defendant “willfully” promote, further, assist, or benefit from felonious gang conduct (§ 182.5), and case law has long recognized that “ ‘[t]o do a thing wilfully is to do it by design, with set purpose.’ [Citation.] To do a thing wilfully is to do it knowingly.” (People v. Calvert (1928) 93 Cal.App. 568, 573, 269 P. 969; see People v. Atkins (2001) 25 Cal.4th 76, 85, 104 Cal.Rptr.2d 738, 18 P.3d 660.)

Here, there was evidence that defendant was a DBG leader who actively participated in the gang, that he knew DBG members engaged in a pattern of criminal activity, and that he acted as an aider and abettor or a conspirator in the Eduardo murder or in an assault with a firearm for which murder was a natural and probable consequence. Indeed, the jury convicted defendant of murder and found true the allegation that defendant committed the murder for the benefit of, or at the direction of, or in association with DBG, with specific intent to promote, further, or assist in criminal gang conduct. Because defendant's conduct fell squarely within the parameters of section 182.5, his vagueness challenge must fail. (Holder, supra, 561 U.S. at p. 21, 130 S.Ct. 2705; Bowland v. Mun. Court for Santa Cruz County Judicial Dist. (1976) 18 Cal.3d 479, 492, 134 Cal.Rptr. 630, 556 P.2d 1081.)

In arguing to the contrary, defendant barely addresses his own conduct or the evidence presented in his case. Instead, he points out that during the first jury trial, the trial court indicated its belief that section 182.5 did not apply to a person who did not know about the crime he or she derived a benefit from, and the prosecutor made arguments leading the jury to believe it could convict defendant of the section 182.5 count without finding he agreed to benefit from or knew about the murder prior to its commission. Defendant also complains the trial court failed to instruct the jury in the second trial that it was required to find defendant willfully agreed to benefit from the murder prior to its commission.

These arguments are non-sequiturs. It is not apparent why statements by the trial court and prosecutor at the first trial and the claimed instructional omission in the second trial are relevant to the question of whether defendant's conduct clearly falls within the ambit of section 182.5. That said, we note the prosecutor did not suggest at the second trial that defendant was guilty under section 182.5 as a passive recipient of benefit. Moreover, the court instructed the jury a conviction on the section 182.5 count required its finding that defendant “acted with the specific intent to promote, further, assist, or benefit from the Second Degree Murder charged in Count One.”8

Defendant asserts: “nothing in the jury's verdict indicates that it found that [defendant] planned a murder. Although the jury convicted [defendant] of murder in count one, the instructions permitted a conviction if the jury found [defendant] merely aided and abetted, or conspired to, commit an assault with a firearm and murder was a natural and probable consequence of that murder. [Citation.] Moreover, the evidence supported this theory.” This argument is difficult to understand and ultimately unpersuasive. Again, the issue at hand concerns the constitutionality of section 182.5, and the precise question is whether defendant's conduct clearly fell within its bounds. As explained above, the answer to that question is a firm yes.

Bearing in mind the strong presumption that a law must be upheld unless its unconstitutionality “clearly, positively, and unmistakably appears” (Williams, supra, 5 Cal.4th at p. 568, 20 Cal.Rptr.2d 341, 853 P.2d 507), we reject defendant's vagueness challenge to section 182.5.

2. Personal Guilt and the Scales Decision

Citing Scales, supra, 367 U.S. 203, 81 S.Ct. 1469, defendant argues section 182.5 lacks its “element of personal guilt insofar as there is no requirement of a guilty knowledge and intent” and permits a conviction based on mere affiliation with an organization. We are not persuaded.

Scales involved an alleged member of the Communist Party of the United States who was convicted under the “membership clause” of the Smith Act (18 U.S.C. § 2385), a federal law that criminalized “the acquisition or holding of knowing membership in any organization which advocates the overthrow of the Government of the United States by force or violence.” (Scales, supra, 367 U.S. at p. 205, 81 S.Ct. 1469.) Per the jury instructions, that crime required findings on two elements: “(1) the Communist Party advocated the violent overthrow of the Government, in the sense of present ‘advocacy of action’ to accomplish that end as soon as circumstances were propitious; and (2) [the defendant] was an ‘active’ member of the Party, and not merely ‘a nominal, passive, inactive or purely technical’ member, with knowledge of the Party's illegal advocacy and a specific intent to bring about violent overthrow ‘as speedily as circumstances would permit.’ ” (Id. at p. 220, 81 S.Ct. 1469.)

As relevant here, the petitioner in Scales challenged his conviction by arguing the law was unconstitutional on its face and as applied because it “impermissibly imputes guilt to an individual merely on the basis of his associations and sympathies, rather than because of some concrete personal involvement in criminal conduct” in violation of the Fifth Amendment. (Scales, supra, 367 U.S. at p. 220, 81 S.Ct. 1469.) The United States Supreme Court rejected this contention and upheld the law. (Id. at pp. 224–228, 81 S.Ct. 1469.) As the high court explained: “In our jurisprudence guilt is personal, and when the imposition of punishment on a status or on conduct can only be justified by reference to the relationship of that status or conduct to other concededly criminal activity (here advocacy of violent overthrow), that relationship must be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under the Due Process Clause of the Fifth Amendment. Membership, without more, in an organization engaged in illegal advocacy ․ has not heretofore been recognized by this Court to be such a relationship.” (Id. at pp. 224–225, 81 S.Ct. 1469, italics added.)

The Supreme Court proceeded to analyze “the relationship between the fact of membership and the underlying substantive illegal conduct, in order to determine whether that relationship is indeed too tenuous to permit its use as the basis of criminal liability.” (Scales, supra, 367 U.S. at p. 227, 81 S.Ct. 1469.) On the record before it, the high court observed the Communist Party was “an organization which engages in criminal activity,” and the court could “perceive no reason why one who actively and knowingly works in the ranks of that organization, intending to contribute to the success of those specifically illegal activities, should be any more immune from prosecution than he to whom the organization has assigned the task of carrying out the substantive criminal act.” (Id. at pp. 226–227, 81 S.Ct. 1469, italics added.) In upholding the validity of the statute, the court reasoned that it reached “only ‘active’ members having also a guilty knowledge and intent, ․ which therefore prevents a conviction on what otherwise might be regarded as merely an expression of sympathy with the alleged criminal enterprise, unaccompanied by any significant action in its support or any commitment to undertake such action.” (Id. at p. 228, 81 S.Ct. 1469.)

The California Supreme Court's decision in People v. Castenada (2000) 23 Cal.4th 743, 97 Cal.Rptr.2d 906, 3 P.3d 278 (Castenada) provides guidance in understanding Scales’s articulation of the requirement of personal guilt. Castenada addressed the applicability of Scales in the context of section 186.22, subdivision (a) (“section 186.22(a)), another statute that criminalizes gang activity. (23 Cal.4th at p. 749, 97 Cal.Rptr.2d 906, 3 P.3d 278.) Section 186.22(a) provides: “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, or assists in any felonious criminal conduct by members of that gang, shall be punished by” imprisonment.

Focusing on Scales’s holding that “the Smith Act satisfied the due process requirement of personal guilt by requiring proof of a defendant's active membership in a subversive organization with knowledge of and an intent to further its goals,” the Castenada court indicated that Scales “allowed the criminal conviction of anyone holding active membership in a subversive organization, without requiring that the member aid and abet any particular criminal offense committed by other members.” (Castenada, supra, 23 Cal.4th at pp. 749–750, 97 Cal.Rptr.2d 906, 3 P.3d 278.) Then, turning to the statutory elements of section 186.22(a)—i.e., active participation in a criminal street gang, “knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity,” and willful promotion, furthering, or assisting felonious gang conduct—Castenada observed that such elements exceeded the active membership test articulated in Scales because “a person who violates section 186.22(a) has also aided and abetted a separate felony offense committed by gang members.” (Castenada, at p. 749, 97 Cal.Rptr.2d 906, 3 P.3d 278; see also People v. Carr (2010) 190 Cal.App.4th 475, 488, fn. 13, 118 Cal.Rptr.3d 221 (Carr) [construing § 186.22’s phrase “ ‘the defendant knew that members of a gang engaged in or have engaged in a pattern of criminal gang activity’ ․ to correlate to the active membership test described in Scales, that is, ‘ “guilty knowledge and intent” of the organization's criminal purposes’ ” (citation omitted)]

Turning to the case at hand, we reject defendant's argument that section 182.5 violates the due process principles in Scales. Section 182.5, like section 186.22(a), requires a defendant's active participation in a criminal street gang, as well as “knowledge that its members engage in or have engaged in a pattern of criminal gang activity.” Per Castenada, and as stated in Carr, this appears sufficient to satisfy Scales’s “active membership test.” (Carr, supra, 190 Cal.App.4th at p. 488, fn. 13, 118 Cal.Rptr.3d 221.)

Notwithstanding the foregoing, defendant focuses on the “benefit” provision in section 182.5 and argues it violates Scales because it punishes a defendant for willingly benefiting “without knowledge that the benefit received came as a result of criminal gang conduct.” But, as previously mentioned, “ ‘[t]o do a thing wilfully is to do it knowingly.” (People v. Calvert, supra, 93 Cal.App. at p. 573, 269 P. 969; see People v. Atkins, supra, 25 Cal.4th at p. 85, 104 Cal.Rptr.2d 738, 18 P.3d 660.) Defendant fails to explain how a person can “willfully ․ benefit[ ] from ․ felonious criminal conduct by members of [a] gang” without knowing the benefit he or she reaped came from felonious gang conduct. That is, if a jury finds that a defendant willfully benefited from felonious gang conduct, it stands to reason that the defendant impliedly knew that he or she reaped a benefit from that conduct. Thus, the premise of defendant's argument fails.

Furthermore, while it is true the statute in Scales “prohibited membership in a group advocating the violent overthrow of the government,” i.e., it criminalized “mere membership” (Holder, supra, 561 U.S. at pp. 17–18, 130 S.Ct. 2705), Scales “construed the statute to require active membership and, as so construed, upheld it despite the absence of any element requiring a specific act of criminality.” (People v. Albillar (2010) 51 Cal.4th 47, 57, 119 Cal.Rptr.3d 415, 244 P.3d 1062, italics added.) Here, section 182.5 is not a statute that criminalizes mere membership in a gang or, as Scales put it, punishes “merely an expression of sympathy with the alleged criminal enterprise, unaccompanied by any significant action.” (Scales, supra, 367 U.S. at p. 228, 81 S.Ct. 1469.) Rather, section 182.5 makes a defendant culpable for conspiracy to commit a specific felony if, among other things, a defendant willfully benefits from felonious gang conduct. In other words, section 182.5 requires a significant action, not mere membership. (Cf. United States v. Cupa-Guillen (9th Cir. 1994) 34 F.3d 860, 863 [“Where an offense is based on an underlying act which society has an interest in preventing, the offense is not a status crime.”].)

We reject defendant's claim that section 182.5 violates the concept of personal guilt articulated in Scales.




The case is remanded to the trial court to consider whether to strike the firearm enhancement imposed under section 12022.53. The clerk of the superior court is ordered to forward a certified copy of any amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.

Appellant's petition for review by the Supreme Court was denied March 10, 2021, S266554.


1.   All further statutory references are to the Penal Code unless otherwise specified.

2.   For the sake of brevity, parity, and clarity because of shared last names, we will generally refer to defendant, his codefendants, and to the murder victim by their first names only. No disrespect is intended.

3.   Pursuant to the California Rules of Court, rule 8.90, governing “Privacy in Opinions,” we refer to certain witnesses by first name and last initial or by initials only.

4.   On the stand, B.O. also identified defendant as the driver of the white car. After she testified, the parties read a stipulation into the record that B.O. did not identify defendant as a person she saw on the day of the shooting when she testified at the first trial. Later testimony also showed B.O. did not identify defendant in photo lineups the police showed to her.

5.   Brian G. was charged in connection with Eduardo's murder, and he testified in exchange for a plea agreement which entailed a two-year prison sentence with the ability to earn half-time credits. After taking the plea, he was placed into a witness protection program.

6.   Sergeant Daniel Wiegers of the San Pablo Police Department, who was a lead investigator in Eduardo's murder case, testified that Brian G. told him that Steven, not defendant, had explained he shot the victim because the victim was responsible for shooting his niece.

7.   “Criminal street gang” is defined 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 [various enumerated crimes], 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.” (§ 186.22, subd. (f).)“Pattern of criminal gang activity” is defined, in part, as “the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of [various enumerated] offenses.” (§ 186.22, subd. (e).)

8.   The issue of whether the trial court properly gave this specific intent instruction has not been briefed and that issue is not before us.

FOOTNOTE.   See footnote, ante, page 100.

Fujisaki, J.

Siggins, P. J., and Jackson, J., concurred.

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