Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 07CF291, John Conley, Judge.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Melissa Mandel and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, J.
A jury convicted defendant Juan Cruz of misdemeanor vandalism (Pen. Code, § 594, subd. (a)(1); all statutory references are to this code) and street terrorism (§ 186.22, subd. (a)) and found true an allegation he committed the vandalism for the benefit of a criminal street gang. (§ 186.22, subd. (d).) The court subsequently found true allegations defendant had one prior strike conviction (§§ 667, subds. (d) & (e)(2)(A), 1170.12, subds. (b) & (c)(2)(A)) and two prior serious felony convictions (§ 667, subd. (a)(1)) and had served a prior prison term (§ 667.5, subd. (b).) It struck all but the two prior serious felony convictions and sentenced defendant to 11 years, 4 months in prison, consisting of 16 months on count 1, vandalism committed for the benefit of a criminal street gang (§§ 594, subd. (a)(1), 186.22, subd. (d)), 16 months on count 2, street terrorism (§ 186.22, subd. (a)), to be served concurrently, and 5 years for each prior serious felony.
Defendant appeals contending the evidence is insufficient to support the felonious conduct element of the street terrorism count and the two prior serious felony enhancements should be stricken because neither count 1 nor count 2 are serious felonies. We agree. Defendant’s conviction for street terrorism is reversed and the two prior serious felony enhancements are stricken. In all other respects, the judgment is affirmed.
FACTS
After defendant was seen writing graffiti outside of a market, police officers arrived and took him into custody. A gang expert testified defendant was a member of Los Compadres, a territorial, active criminal street gang with at least 50 members whose primary activities were serious assaults, including assaults with weapons, attempted murder, and driving stolen vehicles. By tagging the market, which was located in Los Compadres territory, defendant promoted and benefited the gang by marking its territory “to instill fear in... the community and rival gang members.”
DISCUSSION
1. Sufficiency of the Evidence of Street Terrorism
“In enacting section 186.22, the Legislature sought to provide an alternative sentencing scheme, producing harsher punishment for gang-related offenses.” (People v. Arroyas (2002) 96 Cal.App.4th 1439, 1444 (Arroyas).) Under section 186.22, subdivision (a), “[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 may be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.” Comparatively, section 186.22, subdivision (d) provides an alternative sentencing scheme of one, two, or three years in state prison “when the underlying offense is committed under specified circumstances....” (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900.) In particular, it applies to “[a]ny person who is convicted of a public offense punishable as a felony or a misdemeanor, which is committed 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. (d).)
“The substantive offense defined in section 186.22[, subdivision ](a) has three elements: Active participation in a criminal street gang, in the sense of participation that is more than nominal or passive,... ‘knowledge that [the gang’s] members engage in or have engaged in a pattern of criminal gang activity,’ and... the person ‘willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.’ [Citation.]” (People v. Lamas (2007) 42 Cal.4th 516, 523 (Lamas).) Defendant challenges only the third element, contending his street terrorism conviction must be reversed because there was insufficient evidence that he committed or aided and abetted a distinct and separate felony. He asserts the only conduct the prosecutor relied on to satisfy this element was the misdemeanor vandalism count, which, although elevated to a felony under section 186.22, subdivision (d), does not suffice because “Lamas requires a ‘distinct’ felony, and none was proven here.” As the Attorney General notes, defendant “attacks the notion of using gang conduct twice[,]” first to elevate the misdemeanor conduct of vandalism to a felony and then to support a street terrorism conviction. We agree this was error but not for the reasons asserted in Lamas.
Lamas addressed the relationship between section 12031 (carrying a loaded firearm in public) and section 186.22. Although typically a misdemeanor (§ 12031, subd. (a)(2)(G)), carrying a loaded firearm in public becomes a felony “[w]here the person is an active participant in a criminal street gang, as defined in subdivision (a) of [s]ection 186.22...” (§12031, subd. (a)(2)(C)). Because “active participant in a criminal street gang” is not defined in section 186.22, subdivision (a), the phrase has been held to “‘refer[] to the substantive gang offense defined in section 186.22[, subdivision ](a).’ [Citation.]” (Lamas, supra, 42 Cal.4th at p. 523.) Thus “‘carrying a loaded firearm in public becomes a felony under section 12031[, subdivision ](a)(2)(C) when a defendant satisfies the elements of the offense described in section 186.22[, subdivision ](a)’ by ‘“actively participat[ing] in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity” and “willfully promot[ing]ing, further[ing] or assist[ing] in any felonious criminal conduct by members of that gang.” [Citation.]’ [Citation.]” (Ibid.)
Given this interplay between the two statutes, Lamas held that proof of the third element of street terrorism required proof that the defendant “‘willfully promot[ed], further[ed], or assist[ed] in... felonious criminal conduct by members of that gang’” (§ 186.22[, subd. ](a)) that is distinct from his otherwise misdemeanor conduct of carrying a loaded weapon in public. [¶] In other words, all of section 186.22[, subdivision ](a)’s elements must be satisfied, including that defendant willfully promoted, furthered, or assisted felonious conduct by his fellow gang members before section 12031[, subdivision ](a)(2)(C) applies to elevate defendant’s section 12031, subdivision (a)(1) misdemeanor offense to a felony. Stated conversely, section 12031(a)(2)(C) applies only after section 186.22(a) has been completely satisfied by conduct distinct from the otherwise misdemeanor conduct of carrying a loaded weapon in violation of section 12031, subdivision (a)(1). Therefore, defendant’s misdemeanor conduct—being a gang member who carries a loaded firearm in public—cannot satisfy section 186.22[, subdivision ](a)’s third, felonious conduct, element and then be used to elevate the otherwise misdemeanor offense to a felony.” (Lamas, supra, 42 Cal.4th at p. 524.)
The reverse happened here: defendant’s misdemeanor conduct of vandalism was first elevated to a felony under section 186.22, subdivision (d), and then used to supply the felonious criminal conduct element of section 186.22, subdivision (a). Lamas’s rationale thus does not apply. Rather, we are guided by Arroyas, supra, 96 Cal.App.4th 1439 and our opinion in Lopez v. Superior Court (2008) 160 Cal.App.4th 824 (Lopez).
The prosecutor in Arroyas charged the defendant with misdemeanor vandalism, alleged it was a felony under section 186.22, subdivision (d), and added a gang enhancement under section 186.22, subdivision (b). Arroyas upheld the felony designation of the vandalism, noting that section 186.22, subdivision (d) did not specifically elevate the crime to felony status but rather transferred whatever substantive crime is charged into a “wobbler,” granting the sentencing court the discretion to impose either felony or misdemeanor punishment. (Arroyas, supra, 96 Cal.App.4th at pp. 1443-1444.)
But it struck the enhancement under section 186.22, subdivision (b), notwithstanding “the purpose of [section 186.22] was to combat the ‘state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods.’... [¶] While any felony may be punished under section 186.22, subdivision (b)[], subdivision (d) presents an option to punish a felony differently than provided by subdivision (b)[], and also provides an option to punish gang-related misdemeanors more severely. Although subdivision (d) allows the court to impose felony punishment for a misdemeanor committed with a gang-related purpose, nothing in the statute or in its stated purposes suggests an intention of the people of this state to bootstrap subdivision (d) misdemeanors into subdivision (b)(1) felonies as a means of applying a double dose of harsher punishment.” (Arroyas, supra, 96 Cal.App.4th at pp. 1444-1445, italics added.) As Arroyas noted, proposition 21 does not permit “a defendant [to] receive double punishment because his or her crime fell within the scope of two statutes. Rather, section 37 of the proposition advises that where a crime does fall within the scope of two statutes, only the statute yielding the longer period of punishment should apply.” (Arroyas, supra, 96 Cal.App.4th at p. 1448.)
People v. Briceno (2004) 34 Cal.4th 451, which held that any felony to which a section 186.22, subdivision (b) enhancement is attached qualifies as a serious felony for future enhancement, cited Arroyas with approval, noting it “avoids the impermissible bootstrapping that would occur if any felony that is gang related is also deemed serious in the current proceeding. Specifically, while it is proper to define any felony committed for the benefit of a criminal street gang as a serious felony..., it is improper to use the same gang-related conduct again to obtain an additional five-year sentence under section 186.22[, subdivision](b)(1)(B).” (People v. Briceno, supra, 34 Cal.4th at p. 465.)
In Lopez, supra, 160 Cal.App.4th at pages 827, 831, this court considered whether the same gang-related conduct can be used to charge the defendant with contempt of an injunction to abate his gang’s conduct and then used again to elevate that offense from a straight misdemeanor into to a felony under section 186.22, subdivision (d). Following Arroyas and Briceno, we concluded this was improper because “the ‘same gang-related conduct’ cannot be used twice in the same sentencing scheme without violating the concept of double punishment for the same act. [Citations.]” (Lopez, supra, 160 Cal.App.4th at p. 831.) “[T]he prosecution cannot legally criminalize behavior due to the sole fact that it is gang related and then increase punishment for that behavior simply by again alleging the same gang-related fact.” (Id. at p. 833.)
The Attorney General distinguishes Arroyas and Lopez on the ground the same gang-related conduct was not used “to prove two different violations under section 186.22” because the tagging for the benefit of a gang offense under section 186.22, subdivision (d) only “supplied a single element of the [section 186.22,] subdivision (a)[] crime, which required the prosecution to prove two additional elements.” He argues “Lopez is... similar to Arroyas, in that the very same fact was used twice to punish the defendant. That was not the case here[ because]... the elements of the two offenses were very different, requiring differing factual proof. This was not a case of conduct being used for one consequence, and then that same conduct is used again for a second consequence, such as was the case in Arroyas and Lopez.”
On the contrary, the same gang-related conduct was first used to elevate the vandalism from a misdemeanor to a felony and then to provide the felonious conduct element for street terrorism. This is the same impermissible bootstrapping that Arroyas and Lopez forbade and results in double punishment for the same conduct. Regardless of whether additional elements must be proven under section 186.22, subdivision (a), the fact remains defendant would not have been convicted of street terrorism but for “the ‘same gang-related conduct” charged under section 186.22, subdivision (d). “Thus, it is ‘the same gang-related conduct [used] again to obtain an additional’ form of punishment [citation]” (Lopez, supra, 160 Cal.App.4th at p. 832), i.e. a street terrorism conviction. As Lopez explains, “The dual use of the same fact of gang-related conduct is the pivotal point that constitutes the impermissible bootstrapping.” (Ibid; see also People v. Ireland (1969) 70 Cal.2d 522, 539 [“This kind of bootstrapping finds support neither in logic nor in law... when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged.”].)
“We conclude the prosecution cannot legally [elevate a misdemeanor] due to the sole fact that it is gang related and then increase punishment for that behavior simply by again alleging the same gang-related fact[]” (Lopez, supra, 160 Cal.Cal.App.4th at p. 833) under a different statute. Because the Attorney General does not suggest any conduct other than the misdemeanor vandalism elevated to a felony under section 186.22, subdivision (d) satisfied the felonious conduct element for section 186.22, subdivision (a), the conviction for street terrorism is reversed.
2. Prior Serious Felonies
Defendant argues the two five-year enhancements under section 667, subdivision (a) should be stricken because neither the vandalism nor the street terrorism convictions qualify as a serious felony. The Attorney General “asserts the serious felony in this case was the [street terrorism] count, not tagging for the benefit of a criminal street gang.” Given that concession and our reversal of the street terrorism count we agree with defendant there was no serious felony committed in this case that would allow imposition of the section 667, subdivision (a) enhancements.
Section 667, subdivision (a)(1) reads, “In compliance with subdivision (b) of Section 1385, any person convicted of a serious felony who previously has been convicted of a serious felony..., shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively.” Subdivision (a)(4) defines “serious felony” as “a serious felony listed in subdivision (c) of Section 1192.7.” (§ 667, subd. (a)(4).)
Under section 1192.7, subdivision (c)(28), a serious felony includes “any felony offense, which would also constitute a felony violation of Section 186.22[.]” But there was no felony violation of section 186.22 in this case. Consequently, the two enhancements under section 667, subdivision (a) are stricken.
DISPOSITION
Defendant’s conviction on count 2 for street terrorism is reversed (see People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 72 [when conviction reversed for insufficient evidence, the defendant may assert double jeopardy claim to bar retrial]) and the two five-year enhancements under section 667, subdivision (a) are ordered stricken. The case is remanded for resentencing. In all other respects, the judgment is affirmed.
WE CONCUR: SILLS, P. J. O’LEARY, J.