PEOPLE V. ALBERT ANDREW ALBILLAR












Filed 12/20/10






IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE, )
)
Plaintiff and Respondent, )
) S163905
v. )
) Ct.App. 2/6 B194358
ALBERT ANDREW ALBILLAR et al., )
) Ventura County
Defendants and Appellants. ) Super. Ct. No. 2005044985
__________________________________ )


STORY CONTINUE FROM PART I….


B
The second prong of section 186.22(b)(1) requires that a defendant commit the gang-related felony “with the specific intent to promote, further, or assist in any criminal conduct by gang members.” Defendant Madrigal contends there is insufficient evidence that he committed the attack on Amanda M. with the specific intent to promote, further, or assist other criminal conduct by gang members. The People respond that section 186.22(b)(1) encompasses the specific intent to promote, further, or assist in any criminal conduct by gang members—including the current offenses—and not merely other criminal conduct by gang members. We agree with the People.
In Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia), a divided panel of the Ninth Circuit construed section 186.22(b)(1) to require evidence that a defendant had the specific intent to further or facilitate other criminal conduct—i.e., “other criminal activity of the gang apart from” the offenses of which the defendant was convicted. (Garcia, supra, at p. 1101.) The majority found insufficient evidence that the particular robbery for which Garcia was convicted “was committed with the specific purpose of furthering other gang criminal activity, and there is nothing inherent in the robbery that would indicate that it furthers some other crime. . . . [¶] . . . [¶] . . . There was testimony that the gang committed robberies, but nothing to indicate why those robberies were aided or intended to be aided by this robbery.” (Id. at pp. 1103-1104.) Judge Wallace, dissenting, complained that the majority had “misinterpret[ed] the requirements of section 186.22(b)(1),” inasmuch as the provision “does not require proof that the crime of conviction was committed with the intent to further some other specifically identified crime or category of crimes.” (Id. at p. 1105 (dis. opn. of Wallace, J.).) In addition to the text of the statute itself, the dissenting judge relied on the fact that “California courts have rejected sufficiency of the evidence claims even where such evidence [of a specific intent to further other criminal conduct] was entirely lacking.” (Ibid.)
In Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069 (Briceno), another divided panel, relying on Garcia, again granted habeas relief with respect to the gang enhancements, finding insufficient evidence that the charged robberies were committed with the specific intent to facilitate other criminal conduct by the gang. (Briceno, supra, at p. 1079.) Judge Wardlaw, in dissent, observed that the majority had “conflate[d] the analysis of the two prongs” of the enhancement—i.e., that the defendant committed a felony for the benefit of, at the direction of, or in association with a gang, and that the defendant did so with the specific intent to promote, further, or assist in any criminal conduct by gang members—in that “[t]he second prong requires proof not that defendant had specific intent to ‘benefit’ the gang, but that he had the specific intent to ‘promote, further, or assist in any criminal conduct by gang members.’ ” (Id. at p. 1084, fn. 2 (conc. & dis. opn. of Wardlaw, J.).) She noted, moreover, that “unequivocal state law” had established “that to prove ‘specific intent to . . . assist in any criminal conduct by gang members,’ it is sufficient to demonstrate that the ‘defendant intended to commit [the crimes], that he intended to commit them in association with [his accomplices], and that he knew that [his accomplices] were members of his gang.’ [People v. Morales (2003) 112 Cal.App.4th at p. 1197]; see also People v. Villalobos, 145 Cal.App.4th 310, 322 (2006) (‘Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime’; People v. Romero, 140 Cal.App.4th 15, 20 (2006) (‘There was ample evidence that appellant intended to commit a crime, that he intended to help [his accomplice] commit a crime, and that he knew [his accomplice] was a member of his gang’.” (Briceno, supra, 555 F.3d at pp. 1084-1085 (conc. & dis. opn. of Wardlaw, J.).) Finally, she remarked that “Garcia has been explicitly disapproved in two subsequent California Court of Appeal decisions” and concluded that “California courts could not have indicated more clearly that our interpretation of section 186.22(b) was incorrect.” (Briceno, supra, 555 F.3d at p. 1088 (conc. & dis. opn. of Wardlaw, J.), citing People v. Hill (2006) 142 Cal.App.4th 770, 774, and People v. Romero, supra, 140 Cal.App.4th at p. 19.)
The conflict between our state courts and the federal courts as to the interpretation of section 186.22(b)(1) has persisted. After Briceno was decided, People v. Vazquez, supra, 178 Cal.App.4th at pages 353-354, observed, “While our Supreme Court has not yet reached this issue, numerous California Courts of Appeal have rejected the Ninth Circuit’s reasoning. As our colleagues noted in People v. Romero[, supra,] 140 Cal.App.4th [at page] 19: ‘By its plain language, the statute requires a showing of specific intent to promote, further, or assist in “any criminal conduct by gang members,” rather than other criminal conduct. (§ 186.22, subd. (b)(1), italics added.)’ . . . . [¶] Like the Romero court, we reject the Ninth Circuit’s attempt to write additional requirements into the statute. It provides an enhanced penalty where the defendant specifically intends to ‘promote, further, or assist in any criminal conduct by gang members.’ (§ 186.22, subd. (b)(1).) There is no statutory requirement that this ‘criminal conduct by gang members’ be distinct from the charged offense, or that the evidence establish specific crimes the defendant intended to assist his fellow gang members in committing.” (See also People v. Hill, supra, 142 Cal.App.4th at p. 774.)
We agree with this construction of the gang enhancement. In part I, ante, we determined that similar statutory language in section 186.22(a), which applies to an active participant in a gang who “willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang,” was not ambiguous and extended to any felonious criminal conduct, not just felonious gang-related conduct. We likewise find that the scienter requirement in section 186.22(b)(1)—i.e., “the specific intent to promote, further, or assist in any criminal conduct by gang members”—is unambiguous and applies to any criminal conduct, without a further requirement that the conduct be “apart from” the criminal conduct underlying the offense of conviction sought to be enhanced.
A similar analysis disposes of the related argument, advanced by all three defendants, that section 186.22(b)(1) requires the specific intent to promote, further, or assist a gang-related crime. The enhancement already requires proof that the defendant commit a gang-related crime in the first prong—i.e., that the defendant be convicted of a felony committed for the benefit of, at the direction of, or in association with a criminal street gang. (People v. Gardeley, supra, 14 Cal.4th at pp. 621-622.) There is no further requirement that the defendant act with the specific intent to promote, further, or assist a gang; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members. (People v. Ochoa, supra, 179 Cal.App.4th at p. 661, fn. 6; accord, Briceno, supra, 555 F.3d at p. 1084, fn. 3 (conc. & dis. opn. of Wardlaw, J.) [“Here, only the specific intent element of the statute is at issue. Therefore, the lack of gang-related indicia is not dispositive”].)
As in part I, ante, the absence of ambiguity dispenses with the need to review the legislative history, but we do note that the history is again consistent with a plain language construction of the statute. Senate Bill No. 1555, the bill that eventually enacted Penal Code section 186.22, in its original form proposed a separate offense for “[a]ny person who commits any . . . felony, misdemeanor, or infraction . . . if the felony, misdemeanor, or infraction: (1) is part of a pattern of criminal gang-related activity, or is done for the benefit of, at the direction of, or in association with, any gang, and (2) is committed with the specific intent to promote or further any of its criminal gang-related activity, or to assist in continuing its pattern of criminal gang-related activity.” (Sen. Bill No. 1555, as introduced Mar. 6, 1987, § 1, p. 5, italics added [proposing Pen. Code, § 186.13, subd. (a)].) Subsequent amendments, though, deleted the italicized language (Sen. Bill No. 1555, as amended May 22, 1987, § 1, pp. 10-11), thus creating a substantive offense that applied to an active gang participant “who willfully promotes, furthers or assists in any felonious criminal conduct by members of that gang” and an enhancement that applied to any person convicted of a gang-related offense “with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (Former § 186.22(a) & (b), as enacted by Stats. 1988, ch. 1256, § 1, p. 4179, italics added, repealed and reenacted by Stats. 1989, ch. 930, §§ 5, 5.1, pp. 3251, 3253; see now § 186.22(a) & (b)(1).)
We also reject the argument, advanced by all three defendants, that the constitutional requirement of personal guilt would compel the inclusion in the enhancement of a specific intent to aid the gang. The claim is specious. The enhancement set forth in section 186.22(b)(1) does not risk conviction for mere nominal or passive involvement with a gang. Indeed, it does not depend on membership in a gang at all. Rather, it applies when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang. Defendants cite no authority to suggest that this would run afoul of Scales v. United States, supra, 367 U.S. 203, which upheld a statute criminalizing active membership in an organization that advocates the overthrow of the federal government by force or violence even in the absence of a specific act of criminality. (Id. at p. 225; cf. People v. Gardeley, supra, 14 Cal.4th at pp. 623-624.)
In sum, if substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members. Here, there was ample evidence that defendants intended to attack Amanda M., that they assisted each other in raping her, and that they were each members of the criminal street gang. Accordingly, there was substantial evidence that defendants acted with the specific intent to promote, further, or assist gang members in that criminal conduct.
Disposition
The judgment of the Court of Appeal is affirmed.
BAXTER, J.

WE CONCUR:
GEORGE, C.J.
KENNARD, J.
CHIN, J.
CORRIGAN, J.

CONCURRING AND DISSENTING OPINION BY WERDEGAR, J.


I concur in the majority’s construction of Penal Code section 186.22, subdivision (a).^[1] With respect to the enhancement imposed on each defendant under subdivision (b) of section 186.22, I concur as well with the majority’s conclusion that the evidence supported a true finding on the second prong, i.e., that each defendant acted “with the specific intent to promote, further, or assist in any criminal conduct by gang members” (id., subd. (b)(1)). I disagree, however, that the evidence supports a true finding on the first prong of the enhancement—that the crimes were committed “for the benefit of, at the direction of, or in association with any criminal street gang.” (Ibid.)
I.
The proliferation of criminal street gangs and gang-related crimes is deeply troubling, impacting our neighborhoods, our citizenry and our families, and threatening the individual personal security of us all. In the California Street Terrorism Enforcement and Prevention Act (the STEP Act), the Legislature has attempted to address this disturbing state of affairs by imposing enhanced punishment for felonies committed by a gang member if the offense is gang connected or accompanied by a gang-related purpose or intent, so that the crime is enhanced if, in its commission, the gang member acted “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).)
Notwithstanding the breadth of the enhancement, not every crime committed by gang members is related to the gang. In particular, in this case there is little evidence to conclude defendants’ crimes were linked to SouthSide Chiques—i.e., that they were committed for the benefit of or in association with the gang—and significant reason to conclude they were not so linked. Defendants, twin brothers and their cousin, lived together with the twins’ mother in the apartment where the crimes were committed. Thus, they were brought together by domestic arrangement and familial relationship, not by their membership in the gang. They spent the day of the offenses socializing with the victim and her friends, as they had done in the past without incident. The apartment where the crimes were committed—the defendants’ home—was outside the gang’s territory. The victim was a young and trusting acquaintance with whom defendants were friendly and with whom they apparently remained somewhat friendly even after the crimes. The victim testified that a few days after the crimes she received a hug from defendant John Madrigal at a party.
As these facts suggest, the crimes, like gang-related crimes, reflect a disturbing trend in society, but were of a sort that is often not gang-related—where young men for their apparent amusement, or because they wish to impress their companions, sexually assault a young female acquaintance who mistakenly believes she is among friends. The relationship of the perpetrators to one another and to a specified group or organization often factors into this sort of crime. Reports of sexual assaults committed by members of a sports team or fraternity, or by high school students brought together by a social event, are, regrettably, not uncommon. Undoubtedly crimes of this sort are also committed by members of criminal street gangs. But although common membership in an organization may be a contributing factor, few would claim a sexual assault committed in concert by members of a sports team, fraternity or high school student body was committed “for the benefit of” or “in association with” the sports team, fraternity or high school.
In order to prove the enhancement, therefore, the prosecution’s challenge was to show defendants’ crimes were more than the casual, opportunistic abuse of a defenseless female acquaintance—that they were in some way tied to SouthSide Chiques. As no evidence showed defendants admitted to a subjective motive to benefit SouthSide Chiques, to show the crimes were committed for that purpose the prosecutor might have tried to show the gang solicited or encouraged such crimes, or at least that sexual assaults were typical of its members. Alternatively, because to act “in association with” an organization would seem to mean joining with the organization,^[2] the prosecution might have attempted to show defendants had come together with the SouthSide Chiques gang for the common purpose of committing the crimes. The prosecution showed none of these things.
II.
To Benefit the Gang
The only evidence presented on the relationship of the offenses to the gang was the opinion of Detective Neail Holland, the police expert on gangs and gang culture, who, in response to a hypothetical question posed by the prosecutor, stated his opinion that such crimes would have been committed for the benefit of, at the direction of, or in association with the gang. Detective Holland’s opinion was built on his vivid testimony about criminal street gangs in general and SouthSide Chiques in particular. He explained SouthSide Chiques favors attempted homicide, felony assault, auto theft, felony vandalism and drug trafficking. He also explained gang members commit violent crimes as a means of communicating to the community that the gang is “a violent, aggressive gang that stops at nothing and does not care for anyone’s humanity.” We have upheld convictions where similar testimony supported the expert’s opinion a crime was gang related. For example, in People v. Gardeley (1996) 14 Cal.4th 605, a police expert after describing a gang’s criminal activity, opined that a vicious attack on a stranger, such as the charged assault by gang members against the victim in that case, would be gang-related activity. The expert explained the crime “was a ‘classic’ example of gang-related activity,” relating his knowledge that “criminal street gangs rely on such violent assaults to frighten the residents of an area where the gang members sell drugs, thereby securing the gang’s drug-dealing stronghold.” (Id. at p. 619.) By articulating a rational connection between the crime and the gang’s activities, the expert’s explanation supported his opinion, making it reasonable for the jury to conclude the attack was committed for the benefit of, at the direction of, or in association with the gang. (Ibid.)
Detective Holland, by contrast, expressed no knowledge that sexual assault against a young female acquaintance presented a classic example of gang-related activity. Nor did he explain that SouthSide Chiques encouraged such crimes or relied on them to frighten or intimidate anyone. To the contrary. Although he explained a gang would benefit from a report of the crimes, because the report would elevate the gang’s “reputation to be a violent, aggressive gang that stops at nothing and does not care for anyone’s humanity,” he also stated that Latino gangs such as SouthSide Chiques disapprove of rape and crimes against children. Later, while agreeing with the prosecutor’s suggestion that gang members might still commit such crimes, he explained they would do so for themselves or their personal interests, and “are not going to come back and announce that they have committed a rape or promote it that it’s a rape at all, you know, and they’re going to claim that law enforcement and the district attorney’s office is making stuff up, you know, to protect their position [in the gang], but these crimes still occur.”
No doubt these crimes still occur, and if reported they might result in a benefit to the gang as showing its members’ willingness to commit violent assaults. Nevertheless, nowhere in the detective’s testimony do I find any reason to conclude a sexual assault by members of a Latino gang, as here, would be committed for that reason. I also find nothing to aid the prosecution’s case in the detective’s testimony that “[w]hen three gang members go out and commit a violent brutal attack on a victim, that’s elevating their individual status, and they’re receiving a benefit.” Even aside from the point that these gang members, if asked, would according to the detective deny having committed rape “to protect their position,” his testimony explains only that a gang member might believe he, individually, will derive personal benefit from his crimes. And finally, I do not agree with the majority that the detective’s testimony can reasonably be interpreted to mean that gang members would lose status only by being convicted of the crimes. (Maj. opn., ante, at p. 20.) To the contrary, everything Detective Holland testified to strongly suggested gang members would lose status in the gang by being publicly identified as persons who had committed sexual assault crimes.
In sum, Detective Holland stated a general rule for criminal street gangs: gangs commit violent crimes as a means of communicating their criminality to the community. He also stated an exception to that rule, that Latino gangs disapprove of rape and crimes against children, explaining that although individual members might commit such crimes despite the gang’s disapproval, they would not report it for fear of losing status. Defendants’ crimes fall under the exception. Detective Holland articulated no reason for concluding defendants’ crimes were in any way committed for the benefit of SouthSide Chiques.
The opinion of an expert can provide sufficient support for a factual finding, but the value of an expert’s testimony lies not in the expert’s ability to articulate the ultimate fact, but in the material from which the opinion is fashioned and the reasoning by which the expert progresses to his or her conclusion. (People v. Lawley (2002) 27 Cal.4th 102, 132.) A conviction “in our system of justice, cannot be made to depend on whether or not the witnesses against [the defendant] correctly recite by rote a certain ritual formula.” (People v. Bassett (1968) 69 Cal.2d 122, 140.) In my view, Detective Holland’s opinion that the crimes were committed “for the benefit of” the gang was nothing but an affirmation of the phrase stated by the prosecution in its hypothetical, given without adequate explanation or supporting evidence. It therefore had no evidentiary value. And the record is devoid of other evidence suggesting the crimes were committed for the benefit of the gang. The crimes were committed privately, and the victim did not indicate defendants referred to the gang or to themselves as gang members, either as they were committing the crimes or afterwards, as they drove the victim home. Although after the victim reported the crimes some of her acquaintances warned her against pursuing the matter, there is no evidence defendants reported the crimes either to SouthSide Chiques or to the community at large. Accordingly, the evidence does not support a finding the crimes were committed for the benefit of a criminal street gang.
In Association with the Gang
The lack of evidence the crimes were committed for the benefit of SouthSide Chiques would not be fatal if the evidence supported a finding defendants acted “in association with” a criminal street gang. But again, the prosecutor produced no evidence on the point. There was no showing SouthSide Chiques, as an organization, was involved in or even aware of the crimes until sometime after they were committed. Indeed, the evidence was that SouthSide Chiques would not engage in sexual assaults and would disapprove of the offenses. The prosecutor avoided the problem by providing the jury with a meaning of the phrase “in association with” that did not require such evidence, explaining: “Association has a plain, common, ordinary meaning. Two or more gang members is an association. All three Defendants are active participants in the SouthSide Chiques. They were aware obviously by their living status, by their knowledge of each other, by their group tie that [each] one is a member of SouthSide Chiques. It’s obvious that they know that the . . . other two . . . are also members of the SouthSide Chiques. [¶] They commit the crime in concert with each other, in association with each other. They combine—they pooled their strength, they combined their muscle, they counted on each other’s loyalty to be there and back them up, and it’s easier to divide labor that way and [successfully complete] the crime. They do this crime in close proximity to each other, and they’re assisting each other in committing the crime.”
This explanation allowed the jury to find that defendants, knowing of each other’s gang membership and acting together—pooling their strength and assisting each other in the commission of the crimes—acted in association with the gang. In so doing, it collapsed the requirement of the second prong of section 186.22, subdivision (b)—that each defendant act to promote, further or assist in criminal conduct by gang members, a finding supported by the evidence—with the requirement of the first prong—that the defendants committed the crimes in association with the gang, a finding having no evidentiary support.
What the Legislature intended by “in association with any criminal street gang” is unclear, but that it meant acting “in association with members of a criminal street gang” is unlikely. That the Legislature distinguishes between the gang and members of the gang is shown by its use of both terms throughout section 186.22, including subdivision (b). Indeed, as indicated above, interpreting “criminal street gang” in subdivision (b) to mean “members of a criminal street gang” creates a redundancy in the provision, as the second prong of section 186.22, subdivision (b) already requires that the crime have been committed “with the specific intent to promote, further, or assist in any criminal conduct by gang members.”
The majority provides a different definition of “in association with” a gang, explaining it means that in committing the offenses defendants relied on their “common gang membership and the apparatus of the gang.” (Maj. opn., ante, at p. 15.) Again, by focusing on gang members as associating with one another, rather than as associating with the gang, the majority’s definition also threatens to render a portion of section 186.22, subdivision (b) redundant.
Finally, the majority’s interpretation, whatever its merit, was not provided to the jury. Thus, in finding the enhancements true, the jury necessarily relied on the construction of the phrase provided by the prosecutor, a construction neither consistent with the statute nor endorsed by the majority. Hence, on this ground alone the enhancement should be reversed.


CONCLUSION
I would reverse the enhancements imposed on each defendant’s sentence under section 186.22, subdivision (b).
WERDEGAR, J.
I CONCUR:
MORENO, J.

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Albillar
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 162 Cal.App.4th 935
Rehearing Granted

__________________________________________________________________________________

Opinion No. S163905
Date Filed: December 20, 2010
__________________________________________________________________________________

Court: Superior
County: Ventura
Judge: Edward F. Brodie

__________________________________________________________________________________

Counsel:

Vanessa Place, under appointment by the Supreme, for Defendant and Appellant Albert Andrew Albillar.

Sharon M. Jones, under appointment by the Supreme, for Defendant and Appellant Alex Adrian Albillar.

Conrad Petermann, under appointment by the Supreme, for Defendant and Appellant John Madrigal.

Duane A. Dammeyer, Public Defender (Ventura) and Michael C. McMahon, Chief Deputy Public Defender, for California Public Defenders Association and Public Defender of Ventura County as Amici Curiae on behalf of Defendants and Appellants.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael C. Keller, Lawrence M. Daniels, Scott A. Taryle and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.










Counsel who argued in Supreme Court (not intended for publication with opinion):

Vanessa Place
Post Office Box 18613
Los Angeles, CA 90018
(323) 730-9915

Douglas L. Wilson
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2359





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