IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
KEJUAN DARCELL CLARK,
Defendant and Appellant.
S275746
Fourth Appellate District, Division Two
E075532
Riverside County Superior Court
RIF1503800
February 22, 2024
Justice Kruger authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Liu, Groban,
Jenkins, and Evans concurred.
PEOPLE v. CLARK
S275746
Opinion of the Court by Kruger, J.
This is one in a series of cases concerning the gang
sentencing provisions in Penal Code section 186.22 (section
186.22), as they were recently amended by Assembly Bill
No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333), which was
signed into law in 2021 (see Stats. 2021, ch. 699, §3).
The question in this case concerns Assembly Bill 333’s
changes to the requirements for proving the predicate offenses
constituting a “pattern of criminal gang activity” — one of the
requirements for proving the existence of a “criminal street
gang.” (§ 186.22, subds. (e), (f).) As amended by Assembly Bill
333, section 186.22 defines the term “ ‘criminal street gang’ ” to
mean “an ongoing, organized association or group of three or
more persons, . . . whose members collectively engage in, or have
engaged in, a pattern of criminal gang activity.” (§ 186.22, subd.
(f), italics added (section 186.22(f)).) The amended statute
defines the “ ‘pattern of criminal gang activity,’ ” in turn, to
mean, in pertinent part, the commission of (or other specified
forms of involvement in) two offenses enumerated in the statute,
“provided . . . [they] were committed on separate occasions or by
two or more members” of the gang and the offenses provided a
benefit to the gang that is more than reputational. (§ 186.22,
subd. (e)(1), italics added (section 186.22(e)(1)).
The Courts of Appeal have divided over whether, under
the statute as amended by Assembly Bill 333, the statutory
reference to “collective[]” engagement in a pattern of criminal
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Opinion of the Court by Kruger, J.
gang activity is properly read to mean that each of the two
predicate offenses must be committed in concert with other gang
members and cannot be committed by individual gang members
acting alone. We conclude that this reading is refuted by the
plain language of the statute, which says that the predicate
offenses must be “committed on separate occasions or by two or
more members.” (§ 186.22(e)(1), italics added.) We go on,
however, to consider what the collective engagement
requirement does mean. Reading the statutory text in light of
the Legislature’s purpose of more narrowly targeting the threats
posed by organized group activity, we hold that collective
engagement requires a nexus between the individual predicate
offenses and the gang as an organized, collective enterprise.
This organizational nexus requirement is satisfied by showing a
connection between the predicate offenses and the
organizational structure, primary activities, or common goals
and principles of the gang. Because the Court of Appeal did not
account for this feature of the statute, we reverse and remand
for further proceedings.
I.
Defendant Kejuan Darcell Clark was charged with several
offenses stemming from a July 2015 incident in which he and
others entered a woman’s home without permission. The
prosecution alleged that Clark proceeded to the woman’s
bedroom, where he raped her, then stole her laptop computer
and phone. (People v. Clark (2022) 81 Cal.App.5th 133, 137–141
(Clark).
At the time, Clark was a member of the Northside
Parkland street gang, a subset of the Sex Cash Money street
gang. (Clark, supra, 81 Cal.App.5th at p. 138.) In addition to
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Opinion of the Court by Kruger, J.
charging the substantive offenses, the prosecution alleged
various gang enhancements under section 186.22, subdivision
(b). To establish the gang enhancements, the prosecution
introduced the testimony of a gang expert. The gang expert
testified that the primary activities of the gang included a
variety of criminal offenses, including robbery and burglary.
The expert described Sex Cash Money as a loosely controlled
organization. The gang did not have a leader and formal
structure; instead, there were “big homies” in the gang who were
older and looked up to by other members. The expert was not
aware of any expectation for Sex Cash Money members to give
proceeds from a robbery or burglary to the gang, unlike some
gangs that had specific requirements to “pay upstairs” after
such crimes. Much of the expert’s testimony was devoted to
establishing that the individuals with Clark on the night of the
charged burglary were also gang members and that the charged
burglary would benefit the gang.
To prove the requisite pattern of criminal gang activity by
the gang, the prosecution introduced certified convictions
showing that another gang member, Damon Ridgeway, had
pleaded guilty to robbery in 2014 and to residential burglary in
2009, and that Clark had pleaded guilty to attempted burglary
in 2014. The expert testified that those offenses, and the
conviction or pleas of Clark’s codefendants in the charged
burglary, showed a pattern of criminal activity by Sex Cash
Money. The testimony did not address whether the predicate
offenses, as distinct from the charged burglary, benefited the
gang, or how they were otherwise related to the gang.
The jury convicted Clark of rape (Pen. Code, § 261,
subd. (a)(2)), forced oral copulation (id., § 287, subd. (c)(2)(A)),
false imprisonment (id., § 236), first degree burglary (id., §§ 459,
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PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
460, subd. (a)), and robbery in concert inside an inhabited
dwelling (id., §§ 211, 213, subd. (a)(1)(A)). The jury found the
gang enhancement allegations true as to the burglary, robbery,
and false imprisonment counts. (Clark, supra, 81 Cal.App.5th
at pp. 135–136; see § 186.22, subd. (b)(1)(C).) Clark was
sentenced to 20 years plus an indeterminate term of 90 years to
life, including a 10-year term for the gang enhancement.
Clark appealed his convictions and sentence. While his
appeal was pending, the Assembly Bill 333 amendments to
section 186.22 took effect. Clark argued, and the People did not
dispute, that the amendments applied retroactively to cases on
direct review. (Clark, supra, 81 Cal.App.5th at p. 144, fn. 11.
Invoking the collective engagement provision of the new law,
Clark asserted that the evidence of predicate offenses at trial
was insufficient to support the gang enhancements because the
evidence showed only the commission of offenses by individual
gang members. Clark argued that the statute, as amended by
Assembly Bill 333, required two or more gang members, acting
in concert, to commit each of the two required predicate offenses.
(Clark, at pp. 143–144.
The Court of Appeal rejected this argument as
inconsistent with the definition of a “ ‘pattern of criminal gang
activity’ ” in section 186.22(e)(1), which requires that the two
predicate offenses “were committed on separate occasions or by
two or more members.” The court reasoned that, under the plain
language of the statute, “there are two options for establishing
the requisite pattern [of predicate offenses]: (1) prove two
different gang members separately committed crimes on two
occasions; or (2) prove two different gang members committed a
crime together on a single occasion.” (Clark, supra, 81
Cal.App.5th at p. 144.) Here, the evidence was sufficient
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Opinion of the Court by Kruger, J.
because it showed that “two different gang members separately
committed crimes on two occasions.” (Ibid., italics added.
The Court of Appeal expressly disagreed with People v.
Delgado (2022) 74 Cal.App.5th 1067, which held that collective
engagement under section 186.22(e)(1) requires proof that each
of the predicate offenses was committed by at least two gang
members acting in concert, and with People v. Lopez (2021) 73
Cal.App.5th 327, 345, which had reversed gang enhancements
where “[n]o evidence was introduced at trial to establish that
the crimes committed by [individual gang members] constitute
collective criminal activity.”
We granted review to address the issue.
II.
A.
The Legislature first enacted section 186.22 in 1988 as
part of the California Street Terrorism Enforcement and
Prevention Act (Pen. Code, § 186.20 et seq.), also known as the
STEP Act. (See Stats. 1988, ch. 1242, § 1, pp. 4127–4130.
Subdivision (b) of section 186.22 prescribes “sentence
enhancements or alternate penalties of varying length for ‘any
person who is convicted of a felony 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(b)(1); see id.,
subd. (b)(4).)” (People v. Renteria (2022) 13 Cal.5th 951, 962.
The STEP Act also defines a substantive offense punishing
active participation in a criminal street gang. (§ 186.22,
subd. (a).
As originally enacted, the statute defined a “ ‘criminal
street gang’ ” as “any ongoing association of three or more
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PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
persons that shares a common name or common identifying sign
or symbol; has as one of its ‘primary activities’ the commission
of specified criminal offenses; and engages through its members
in a ‘pattern of criminal gang activity.’ [Citation.] Under the
[STEP Act], ‘pattern of criminal gang activity’ means that gang
members have, within a certain time frame, committed or
attempted to commit ‘two or more’ of specified criminal offenses
(so-called ‘predicate offenses’).” (People v. Gardeley (1996) 14
Cal.4th 605, 610, italics omitted, citing former § 186.22.) The
original statute specified seven offenses, such as robbery, arson,
and witness intimidation, that made up the targeted “primary
activities” of a gang as well as the predicate offenses of the
gang’s members. (§ 186.22, former subd. (c); see also id., former
subd. (d).
The Legislature substantially amended the STEP Act in
Assembly Bill 333, also known as the STEP Forward Act of
2021. (Stats. 2021, ch. 699, § 1.) The new legislation, which
became effective on January 1, 2022, made several changes to
the definition of section 186.22 gang enhancements. “First, it
narrowed the definition of a ‘criminal street gang’ to require that
any gang be an ‘ongoing, organized association or group of three
or more persons.’ (§ 186.22, subd. (f), italics added.) Second,
whereas section 186.22, former subdivision (f) required only that
a gang’s members ‘individually or collectively engage in’ a
pattern of criminal activity in order to constitute a ‘criminal
street gang,’ Assembly Bill 333 requires that any such pattern
have been ‘collectively engage[d] in’ by members of the gang.
(§ 186.22, subd. (f), italics added.) Third, Assembly Bill 333 also
narrowed the definition of a ‘pattern of criminal activity’ by
requiring that (1) the last offense used to show a pattern of
criminal gang activity occurred within three years of the date
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PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
that the currently charged offense is alleged to have been
committed; (2) the offenses were committed by two or more gang
‘members,’ as opposed to just ‘persons’; (3) the offenses
commonly benefitted a criminal street gang; and (4) the offenses
establishing a pattern of gang activity must be ones other than
the currently charged offense. (§ 186.22, subd. (e)(1), (2).
Fourth, Assembly Bill 333 narrowed what it means for an
offense to have commonly benefitted a street gang, requiring
that any ‘common benefit’ be ‘more than reputational.’
(§ 186.22, subd. (g).)” (People v. Tran (2022) 13 Cal.5th 1169,
1206 (Tran).) And finally, Assembly Bill 333 omitted certain
nonviolent offenses from the list of offenses that could make up
a gang’s primary activities or form the requisite pattern of
criminal gang activity, reducing the list of offenses from 33 to
26. (Compare § 186.22, former subd. (e)(1)–(33), as amended by
Stats. 2017, ch. 561, § 178 with § 186.22(e)(1)(A)–(Z).)1
1
As amended, the definition of a “ ‘criminal street gang’ ”
now reads in full: “As used in this chapter, ‘criminal street gang’
means an ongoing, organized 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), having a common name or
common identifying sign or symbol, and whose members
collectively engage in, or have engaged in, a pattern of criminal
gang activity.” (§ 186.22(f).
The full definition of a “ ‘pattern of criminal gang
activity,’ ” as amended, now reads: “As used in this chapter,
‘pattern of criminal gang activity’ means the commission of,
attempted commission of, conspiracy to commit, or solicitation
of, sustained juvenile petition for, or conviction of, two or more
of the following offenses, provided at least one of these offenses
occurred after the effective date of this chapter, and the last of
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PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
In Tran, this court considered a number of questions
concerning Assembly Bill 333’s application to cases tried before
its effective date. Tran held, in line with a substantial body of
appellate authority, that Assembly Bill 333’s amendments to
the definition of section 186.22 gang enhancements are
retroactively applicable to cases on direct review. (Tran, supra,
13 Cal.5th at p. 1207.) Tran also considered a question similar
to the one presented in this case, concerning Assembly Bill 333’s
application to predicate offenses involving individual gang
members, but we did not have occasion to decide it. Instead,
accepting the Attorney General’s confession of error, we
reversed the gang enhancement without addressing whether
the statute allows for the admission of predicate offenses
committed by lone gang members. We explained that “because
the jury was not presented with any discernible theory as to how
[individual gang] members ‘collectively engage[d] in’ the[]
predicate crimes,” “[w]e need not resolve the contours of
Assembly Bill 333’s collective engagement requirement.” (Tran,
at p. 1207.) We now turn to that task.
B.
We begin by addressing the narrow conflict in the Courts
of Appeal about the scope of Assembly Bill 333’s changes to
section 186.22’s predicate offense requirement. The conflict
centers on the interaction between the two definitional
those offenses occurred within three years of the prior offense
and within three years of the date the current offense is alleged
to have been committed, the offenses were committed on
separate occasions or by two or more members, the offenses
commonly benefited a criminal street gang, and the common
benefit from the offenses is more than reputational.”
(§ 186.22(e)(1).
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Opinion of the Court by Kruger, J.
provisions pertinent to the requirement. First, there is the
definition of the term “ ‘criminal street gang’ ” to mean, as
relevant here, “an ongoing, organized association or group of
three or more persons, . . . whose members collectively engage
in, or have engaged in, a pattern of criminal gang activity.”
(§ 186.22(f), italics added.) The use of the word “collectively”
represents a change to the former law, which had required that
gang members “individually or collectively engage in” a pattern
of criminal gang activity (§ 186.22, former subd. (f)). Then,
second, there is the nested definition of “ ‘pattern of criminal
gang activity,’ ” which states that the requisite pattern is
established by commission of two enumerated offenses, so long
as they “were committed on separate occasions or by two or more
members” of the gang and the offenses provided a common
benefit to the gang that is more than reputational.
(§ 186.22(e)(1).) In the “pattern” definition, the requirement
that the predicate offenses provide a common benefit is new, but
the “on separate occasions or by two or more members” language
is largely the same as in the original STEP Act; Assembly Bill
333 replaced “two or more persons” with “two or more members”
but otherwise preserved the language of the original.
In an effort to give effect to the amended statute’s
collective engagement language, the Court of Appeal in Delgado
concluded that each predicate offense must be committed by two
or more gang members. (People v. Delgado, supra, 74
Cal.App.5th at p. 1088.) The court relied on the “commonsense”
meaning of the word “ ‘collectively,’ ” as well as the history
behind its deployment in Assembly Bill 333. (Delgado, at
p. 1088.) The court explained that before Assembly Bill 333, the
predicate offense requirement could be established “by proving
two gang members individually committed the predicate
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Opinion of the Court by Kruger, J.
offenses on two separate occasions.” (Delgado, at p. 1089, citing
§ 186.22, former subd. (e).) A reading that would instead
require proof that at least two gang members committed each
predicate offense, the Court of Appeal reasoned, was consistent
with “the Legislature’s intent to dramatically limit the scope of
the gang enhancement.” (Delgado, at p. 1089.
The obvious difficulty with this reading is that it fails to
give meaning to the language of section 186.22(e)(1), which
states that the requisite pattern of criminal activity is
established by two offenses committed “on separate occasions or
by two or more members.” (§ 186.22(e)(1), italics added.) The
Delgado court never attempted to explain how its approach
could be squared with this provision, and we do not believe it
can. By contrasting offenses committed on “separate occasions”
with those committed by “two or more members,” the language
of section 186.22(e)(1) indicates that only the second alternative
requires the participation of more than one gang member. This
is the most straightforward reading of the language of the
statute. It is also how this court understood the same language
when asked to interpret it some 25 years ago. (People v. Loeun
(1997) 17 Cal.4th 1, 9 (Loeun) [the “Legislature’s use of the
disjunctive ‘or’ in [§ 186.22, former subd. (e)] indicates an intent
to designate alternative ways of satisfying the statutory
requirements”]; see People v. Gardeley, supra, 14 Cal.4th at
p. 624 [crime committed by an individual gang member
constituted a predicate offense under § 186.22, former subd.
(e)].) The Legislature preserved this language in Assembly Bill
333, even as it changed the language of section 186.22(e)(1) in
other respects. (See Tran, supra, 13 Cal.5th at p. 1206
[detailing changes].) We presume the Legislature understood
that the effect of retaining the language intact would be to
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PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
preserve the long-settled understanding of its meaning. (See,
e.g., Tuolumne Jobs & Small Business Alliance v. Superior
Court (2014) 59 Cal.4th 1029, 1039 [“ ‘The Legislature is
presumed to be aware of all laws in existence when it passes or
amends a statute.’ ”].)2
Clark argues that there now exists tension between
section 186.22(e)(1) and section 186.22(f) that pre-Assembly Bill
333 cases such as Loeun did not, and could not have, addressed.
But if there is indeed tension, the approach taken in Delgado
does not resolve it. Rather than harmonize the two provisions,
in its effort to give meaning to section 186.22(f)’s reference to
2
In Loeun, we interpreted the statute to mean that the
prosecution could rely on the substantive offense charged in the
case as one of the predicate offenses establishing a pattern of
criminal gang activity. (Loeun, supra, 17 Cal.4th at p. 5.
Assembly Bill 333 overturned this aspect of Loeun by expressly
requiring proof of two predicate offenses other than the charged
offense. (Stats. 2021, ch. 699, § 3, adding § 186.22, subd. (e)(2).
But Assembly Bill 333 left untouched the disjunctive
formulation of the requirement in section 186.22, subdivision
(e)(1) that predicate offenses be committed “on separate
occasions or by two or more” members. (Stats. 2021, ch. 699, § 3,
italics added.
Assembly Bill 333 also retained in the statutory list of
qualifying predicate offenses certain crimes that are ordinarily
committed by individuals, such as carrying a concealed firearm
and other similar firearm offenses (e.g., § 186.22, subd. (e)(1)(Y);
see also, e.g., id., subd. (e)(1)(U), (X)), and rape as defined in
Penal Code section 261 (id., § 186.22, subd. (e)(1)(L)), rather
than the offense of rape in concert with another person (id.,
§ 264.1, subd. (a)). The Legislature’s retention of crimes
ordinarily committed by persons acting alone is an additional
indication that predicate offenses can be committed by
individual gang members and do not have to be committed by
multiple gang members acting in concert.
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Opinion of the Court by Kruger, J.
collective engagement, Delgado effectively rewrites section
186.22(e)(1) to give it a meaning at odds with its text — that
predicate offenses may be “committed on separate occasions by
two or more members, or by two or more members.” The result
of the insertion is not just to create an awkward redundancy,
but to change the meaning of the sentence by effectively
nullifying the disjunctive clause “or by two or more members.”
(See People v. Garcia (1999) 21 Cal.4th 1, 10 [a court should not
“disregard or rewrite some portion of the statute” but should
“harmonize and give effect to all its provisions”].
The unlikely reading Delgado gives to section 186.22(f)’s
collective engagement language is not compelled by the
ordinary, commonsense meaning of the phrase. The phrase
“collectively engage” is not always a synonym for “commit in
concert.” It can have that meaning. But the word “collectively”
is just as often used to refer to distinctively individual acts that,
considered in the aggregate, form a general pattern. (Webster’s
3d New Internat. Dict. (2002) p. 444 [“collective” denotes “a
number of persons or things considered as constituting one
group” or “aggregated”]; see, e.g., People v. Miranda-Guerrero
(2022) 14 Cal.5th 1, 12 [multiple interrogations “collectively”
spanned a three-day period]; People v. Dalton (2019) 7 Cal.5th
166, 262 [various instructions “collectively” conveyed the
appropriate concept].) Nor is it clear that the collective
engagement language, as it is used in the context of section
186.22(f), was meant to refer to the “collective[]” engagement of
just two gang members. The language appears in a general
definition of “ ‘criminal street gang,’ ” following a list of
attributes pertaining to the gang as a whole: its size, its primary
activities, its “common name or common identifying sign or
symbol.” (§ 186.22(f).) In that context, the reference to “whose
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PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
members collectively engage in, or have engaged in, a pattern of
criminal gang activity” (ibid., italics added) appears more likely
intended to refer to at least some measure of engagement by the
gang’s membership as a whole, rather than referring just to the
“collective[]” actions of a couple of individual members.
Nor is the Delgado court’s reading compelled by
consideration of the functional role the collective engagement
language plays in the statutory scheme. The law recognizes that
offenses committed by lone actors can be gang-related. (E.g.,
People v. Renteria, supra, 13 Cal.5th at p. 964.) The law also
recognizes that criminal street gangs typically involve “a
network of participants with different roles and varying kinds
of involvement.” (People v. Johnson (2013) 57 Cal.4th 250, 266.
As the Attorney General here notes, an individual gang member
could be responsible for collecting “taxes” from local drug dealers
on behalf of the gang, for violently assaulting those who do not
pay, or even for killing members of rival gangs. Such offenses,
though committed by individual gang members, would seem to
present no less a concern about broader patterns of criminal
gang activity — that is, collective engagement in crime — than
if they had been committed by two gang members acting
together.3 Certainly the Legislature that enacted Assembly Bill
3
Amicus curiae Peace and Justice Law Center argues that
the reference to predicate offenses committed “on separate
occasions or by two or more members” (§ 186.22(e)(1)) contains
a drafting error, and that the Legislature intended to replace
the preexisting “or” with “and.” We have acknowledged that an
“inadvertent” mix-up of “ ‘or’ ” and “ ‘and’ ” “is a familiar
example of a drafting error which may properly be rectified by
judicial construction.” (People v. Skinner (1985) 39 Cal.3d 765,
775.) But “[a]lthough we may properly decide upon such a
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Opinion of the Court by Kruger, J.
333 could plausibly so conclude. That it left intact the
disjunctive reference to offenses committed “on separate
occasions or by two or more members” (§ 186.22(e)(1), italics
added), suggests it did just that.
C.
The question, however, remains: If the “collectively
engage” language in section 186.22(f) does not mean that each
predicate offense must have been committed by at least two
gang members acting in concert, then what does it mean? The
language does not point to clear answers. In briefing the issue
in this court, the Attorney General has offered one possibility.
He suggests that by eliminating the reference to a gang’s
members “individually” engaging in a pattern of criminal gang
activity and instead focusing solely on “collective[]” engagement,
the Legislature was aligning the relevant portion of the
definition of a criminal street gang in section 186.22(f) with
other statutory changes, primarily, the new requirement that
the prosecution prove that each predicate offense conferred a
“common benefit” to the gang (§ 186.22(e)(1)).4
construction or reformation when compelled by necessity and
supported by firm evidence of the drafters’ true intent [citation],
we should not do so when the statute is reasonably susceptible
to an interpretation that harmonizes all its parts without
disregarding or altering any of them.” (People v. Garcia (1999
21 Cal.4th 1, 6.) Here, the amendments can be harmonized
without altering a term, and there is ample reason to believe the
Legislature’s use of “or” was deliberate rather than inadvertent.
We therefore do not second guess the Legislature’s choice to
leave the relevant conjunction in place.
4
The Court of Appeal offered another alternative: that, to
be suggestive of collective engagement by “ ‘members’ ” of the
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Opinion of the Court by Kruger, J.
Under the amended version of the statute, each predicate
offense must have conferred a “common benefit,” where the
common benefit is “more than reputational.” (§ 186.22(e)(1).
“Examples of a common benefit that are [sic] more than
reputational may include, but are not limited to, financial gain
or motivation, retaliation, targeting a perceived or actual gang
rival, or intimidation or silencing of a potential current or
previous witness or informant.” (Id., subd. (g).) The Attorney
General notes that this change evidences Assembly Bill 333’s
“broader focus on viewing a criminal street gang as an
organized, collective entity” rather than a loose grouping of
individuals who may commit crimes for their own purposes. In
the briefing, the Attorney General has argued that it is
consistent with that focus to regard proof of a common benefit
from the predicate offenses as sufficient to establish collective
engagement in a pattern of criminal gang activity. The Attorney
General offers, by way of example, a scenario involving offenses
committed by three individual gang members: one who sells
drugs for the gang, a second who murders a rival drug dealer,
and a third who takes possession of the murder weapon to make
it difficult to identify the perpetrator of the murder. The
gang, predicate offenses committed on different occasions must
be committed by different gang members. (Clark, supra, 81
Cal.App.5th at p. 144.) The Attorney General resists that
alternative interpretation but notes that we need not decide the
issue here because the two predicate offenses in this case were
in fact committed by different gang members. We reserve for
another case the question whether the use of the plural
“members” means that the predicate offenses must be
committed by at least two different gang members, and whether
or not those gang members may include the defendant.
(§ 186.22(f).
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Opinion of the Court by Kruger, J.
offenses, though committed by individual gang members, all
confer a common benefit to the gang as a whole. And in so doing,
the Attorney General argues, they also demonstrate the gang’s
collective engagement.
This view — under which the collective engagement
language merely reinforces the new requirement that the
predicate offenses confer a common benefit on the gang, without
adding anything to it — is not entirely implausible. But neither
is it obviously correct. It is certainly reasonable to conclude that
the collective engagement and common benefit changes are
related, insofar as both changes represent a shift in emphasis
toward the attributes that connect individual criminal acts to
the larger gang as a collective enterprise. At the same time,
there is at least a conceptual difference between a requirement
that members of a gang collectively engage in the pattern of
criminal activity shown by predicate offenses, on the one hand,
and a requirement that each predicate offense commonly
benefited the gang, on the other. A group of people can benefit
from the acts of another without having collectively engaged in
them. A crime may achieve a benefit for the entire gang, and
yet say little about collective engagement. An enterprising gang
member, for example, may take it upon himself to perform a one-
time act of embezzlement from his workplace that generates
proceeds enjoyed by the gang, though the gang is neither aware
of nor condones the gang member’s brand of freelancing.
The Attorney General’s proffered example does suggest
collective engagement in the predicate offenses, but there is
more at work in the example than just a common benefit. As
the Attorney General himself describes it, the example is
designed to show how “the term ‘collectively’ in [section
186.22](f) is most naturally read to comport with the common
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Opinion of the Court by Kruger, J.
structure of gangs and account for individual members’ various
roles in committing crimes for the common benefit of the gang,
viewed as a collective enterprise.” The concepts the Attorney
General invokes here — concerning the gang’s organizational
structure; the roles individual members play in carrying out its
primary activities; and consideration of the gang as a collective
enterprise — are all concepts that may overlap, but are not
always coextensive with the question whether individual
members’ offenses conferred a common benefit on the gang.
D.
Ultimately, to discern the meaning of the collective
engagement language, we examine the legislative history for the
light it may shed. (See Walker v. Superior Court (2021) 12
Cal.5th 177, 194 [“If the relevant statutory language is
ambiguous, we look to appropriate extrinsic sources, including
the legislative history, for further insights”].
Nothing in the legislative history speaks specifically to the
Legislature’s intentions in eliminating the reference to a gang
defined by members who “individually” engage in a pattern of
criminal gang activity (§ 186.22, former subd. (f)), and leaving
the requirement that members “collectively” engage in such a
pattern (§ 186.22(f)).5 What the history does indicate, however,
5
One senate analysis does describe the bill as revising the
law to require, among other things, that “the offenses were
committed by two or more members.” (Sen. Rules Com., Off. of
Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 333
(2021–2022 Reg. Sess.) as amended July 13, 2021, p. 4, italics
added.) But as we have already explained, the actual language
of the statute is to the contrary, and no similar description of
section 186.22(f) appears in any of the other available legislative
17
PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
is that the collective engagement language in section 186.22(f
was intended to have independent significance, separate and
apart from the requirements for proving predicate offenses in
section 186.22(e), such as the requirement to prove a common
benefit to the gang.
Legislative analyses emphasized that the bill would
redefine both the term “ ‘criminal street gang’ ” (§ 186.22(f)) and
the term “ ‘pattern of criminal gang activity’ ” (§ 186.22(e)). (See
Assem. Com. on Public Safety, Analysis of Assem. Bill No. 333
(2021–2022 Reg. Sess.) as amended Mar. 30, 2021, p. 1; Sen.
Com. on Public Safety, Analysis of Assem. Bill No. 333, supra,
as amended May 28, 2021, p. 2; Sen. Rules Com., Off. of Sen.
Floor Analyses, 3d reading analysis of Assem. Bill No. 333,
supra, as amended July 13, 2021, p. 4.) And analyses not only
listed the new proof that would be necessary to establish the
predicate offenses — that they were committed by gang
members, benefited the gang, and occurred within three years
of the charged offense — but also separately described the
requirements contained in section 186.22(f). (Assem. Com. on
Public Safety, Analysis of Assem. Bill No. 333, supra, as
amended Mar. 30, 2021, p. 8 [listing the requirements for
proving predicate offenses under section 186.22(e) and
separately noting that the revised section 186.22(f) “would also
require the prosecution to prove the members collectively,
history documents. (See, e.g., Sen. Com. on Appropriations,
Analysis of Assem. Bill No. 333 (2021–2022 Reg. Sess.) as
amended July 13, 2021, p. 2; Sen. Com. on Public Safety,
Analysis of Assem. Bill No. 333 (2021–2022 Reg. Sess.) as
amended May 28, 2021, p. 4.) We thus place no weight on what
appears to be a stray misdescription of the bill in a single line of
a single document.
18
PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
rather than individually, engage in, or have engaged in a
‘pattern of criminal gang activity’ ”]; see also Sen. Rules Com.,
Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill
No. 333, supra, as amended July 13, 2021, p. 4 [same, regarding
the final version of the bill].) If the Legislature had intended
changes to section 186.22(f) to simply reflect and conform to the
requirements of section 186.22(e)(1), as the Attorney General
has argued, it seems unlikely that these descriptions of the bill
would have listed and described collective engagement as a
change with its own distinct meaning.
To discern that meaning, we turn to what the history
reveals, more generally, about the Legislature’s purposes in
enacting Assembly Bill 333. The overarching purpose of the
original STEP Act, as articulated in the declaration
accompanying its initial enactment in 1988, is “to seek the
eradication of criminal activity by street gangs by focusing upon
patterns of criminal gang activity and upon the organized
nature of street gangs, which together, are the chief source of
terror created by street gangs.” (Pen. Code, § 186.21.
Committee reports further explained that the STEP Act was
meant to target criminal street gangs the sponsors
characterized as “large scale big business and large-scale crime
in California.” (Assem. Com. on Public Safety, Analysis of
Assem. Bill No. 2013 (1987–1988 Reg. Sess.) June 8, 1987, p. 4;
see also Assem. Com. on Public Safety, Analysis of Sen. Bill
No. 1555 (1987–1988 Reg. Sess.) as amended June 23, 1987, p. 4
[same].) To effectuate this purpose, the Legislature crafted a set
of requirements for proving the existence of a pattern of criminal
gang activity based on the commission of predicate offenses.
When the Legislature undertook to revise the STEP Act in
2021, it expressed concern that the Act had strayed from this
19
PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
original purpose, with a devastating impact on California
communities. Although the STEP Act “was originally enacted
to target crimes committed by violent, organized criminal street
gangs,” and was only meant to apply “ ‘in the most egregious
cases where a pattern of criminal gang activity was clearly
shown,’ ” the STEP Act “has been continuously expanded
through legislative amendments and court rulings.” (Assem.
Bill 333, § 2(g).) The result, the Legislature found, was that
“[c]urrent gang enhancement statutes criminalize entire
neighborhoods historically impacted by poverty, racial
inequality, and mass incarceration as they punish people based
on their cultural identity, who they know, and where they live.”
(Id., § 2(a).) Groups of residents in certain neighborhoods “are
often mischaracterized as gangs despite their lack of basic
organizational requirements such as leadership, meetings,
hierarchical decisionmaking, and a clear distinction between
members and nonmembers.” (Id., § 2(d)(8).
Through Assembly Bill 333, the Legislature sought to
narrow the statute’s focus to align with its original intent: to
focus on the threats posed by organized criminal street gangs.
(See, e.g., Assem. Com. on Public Safety, Analysis of Assem. Bill
No. 333, supra, as amended Mar. 30, 2021, pp. 7–8 [Assem. Bill
333 would “redefine the term ‘criminal street gang’ ” to reflect a
recommendation from the committee on revision of the Penal
Code to focus the definition on “organized, violent enterprises”].
The Legislature made several changes toward this end,
beginning with its revision of the term “ ‘criminal street gang’ ”
to mean “an ongoing, organized association or group of three or
more persons . . . whose members collectively engage” in a
pattern of criminal gang activity. (§ 186.22(f), italics added.
While the legislative history may not clearly indicate the
20
PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
intended meaning of the Legislature’s switch to a requirement
of collective engagement in a pattern of criminal gang activity,
it is clear what the Legislature meant this change to accomplish.
The change was made in service of the Legislature’s broader
goal of differentiating between the threat posed by organized
groups collectively engaged in criminal activity, versus the
threat posed by individual, loosely connected persons who
happen to commit crimes. That differentiation, we now
conclude, requires a showing that links the two predicate
offenses to the gang as an organized, collective enterprise.6
The Attorney General’s argument proceeds from this same
premise. But, as the Attorney General ultimately conceded at
oral argument, a singular focus on the common benefit
requirement in section 186.22(e) does not prove the existence of
a criminal street gang as defined in section 186.22(f). The fact
6
The Legislature initially added, but then dropped, a
requirement that the predicate offenses “were committed for the
benefit of, at the direction of, or in association with, the criminal
street gang, with the specific intent to promote, further, or assist
in criminal conduct by members of the criminal street gang at
issue.” (Legis. Counsel’s Dig., Assem. Bill No. 333 (2021–2022
Reg. Sess.), as amended Mar. 24, 2021.) That provision would
have required, with respect to predicate offenses, the same
gang-related and specific intent showings now required of the
charged offense, including an inquiry into the mens rea of the
typically absent third party gang member who allegedly
committed the offense. (See § 186.22, subd. (b)(1), (4); see also
People v. Renteria, supra, 13 Cal.5th at p. 965 [describing the
showing these provisions require with respect to the charged
offense].) That the Legislature discarded this more onerous
requirement does not affect our conclusion that the language the
Legislature did enact requires that some connection be shown
between the predicate offenses and the gang as a collective
enterprise.
21
PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
that a crime may have commonly benefited a gang certainly tells
us something about the relationship between the perpetrator
and the gang, but it does not necessarily tell us how the gang
itself can be said to have “collectively engaged” in a pattern of
crime. The Attorney General acknowledged that after proving
that a predicate offense conferred a common benefit on the gang,
it is still necessary to show that the offense reflected an
“organized effort” by the criminal street gang. The Legislature’s
reference to collective engagement thus calls for an inquiry not
just into how the predicate offenses benefited the gang, but also
how the gang works together as a gang. It calls for a showing of
a connection, or nexus, between an offense committed by one or
more gang members and the organization as a whole.
This organizational nexus may be shown by evidence
linking the predicate offenses to the gang’s organizational
structure, meaning its manner of governance; its primary
activities; or its common goals and principles. By reference to
these elements of a gang’s affairs and operations, we do not
mean to overstate the degree of formality required. As we have
recognized, some gangs have a “ ‘loose’ ” structure (People v.
Ware (2022) 14 Cal.5th 151, 170), while others are “highly
ordered and disciplined,” with a “well-defined” hierarchy (People
v. Masters (2016) 62 Cal.4th 1019, 1027). Similarly, some gangs
may have loosely defined goals and principles, while others may
have clearly defined missions. Given this variability, collective
engagement will be established in different ways.
In some cases, for example, there might be evidence of a
direct order from the gang to commit specific crimes. (E.g.,
People v. Lewis (2021) 11 Cal.5th 952, 958 [the murder would
have been agreed on at a meeting called by the gang’s “ ‘ “shot
caller” ’ ”]; In re Masters (2019) 7 Cal.5th 1054, 1063 [a certain
22
PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
attack “would normally have been ordered only by the highest
echelon of a gang’s leadership”].) Alternatively, evidence might
show a more general, well-understood expectation that
members must engage in certain types of offenses. (E.g., People
v. Elizalde (2015) 61 Cal.4th 523, 528 [junior members received
a general order to attack rivals to support the gang and earn
their status].) In other cases, collective engagement might be
shown by demonstrating that the offenses are reflective of the
primary activities of the gang, or else adhere to a common goal
or plan characteristic of the gang in question. (E.g., People v.
Johnson, supra, 57 Cal.4th at p. 256 [members played different
roles in carrying out the gang’s activities, either selling drugs,
patrolling the gang’s territory, or killing rivals]; People v.
Chhoun (2021) 11 Cal.5th 1, 16 [a gang’s complex robberies
followed a common plan of targeting similar victims and relying
on members to play specific roles].
The Attorney General offers several illustrations of
collective engagement. Although nominally offered in support
of the Attorney General’s common benefit argument, each in fact
illustrates the meaning of collective engagement as we have
described it. In one example, a gang tasked members with
collecting “taxes” from local businesses or drug dealers as a way
of maintaining the gang’s territory. In a second example, the
gang directed members to sell drugs in the gang’s territory with
proceeds from the sales used to benefit the gang. A third
example described a gang in which members were authorized to
attack rivals on a “green light list” maintained by the gang. And
in another scenario, discussed above, one member sold drugs for
the gang, a second murdered a rival drug dealer, and a third hid
the murder weapon. In these examples, gang members play a
role in enforcing the territory and terms of the gang’s drug trade
23
PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
or, by killing certain targeted individuals, carry out an edict to
eliminate rivals who pose a threat to the gang. In all of the
examples, the predicate offenses create a common benefit to the
gang. But in all of the examples, the offenses also relate to the
essential characteristics of the criminal street gang — its
organizational structure, primary activities, or common goals
and principles.
The Attorney General’s examples thus reinforce our
understanding of the collective engagement language. The core
inquiry is whether there exists an organizational nexus between
the crime and the gang. For reasons explained above, this is
conceptually distinct from the requirement to prove that each
predicate
offense
“commonly
benefited”
the
gang
(§ 186.22(e)(1)), even though the facts necessary to prove the two
requirements will often overlap with one another. Though the
crimes in the examples above may have been committed by
individual gang members, and provided a benefit to the gang,
the undertakings reflect the collective engagement of the gang
inasmuch as there exists an organizational nexus between the
crimes and the particular characteristics of the “ ‘criminal street
gang’ ” established under section 186.22(f).
III.
Clark is entitled to a remand for further proceedings
unless the lack of instruction on new elements that apply
retroactively under In re Estrada (1965) 63 Cal.2d 740 is
harmless beyond a reasonable doubt. (People v. Cooper (2023
14 Cal.5th 735, 742; Tran, supra, 13 Cal.5th at p. 1207.) We
conclude that the lack of instruction was not harmless.
The Court of Appeal in this case held that because there
was evidence that two members of Sex Cash Money committed
24
PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
crimes on separate occasions, any reasonable jury would have
concluded beyond a reasonable doubt that “members of Sex
Cash Money ‘collectively . . . have engaged in . . . a pattern of
criminal gang activity.’ (§ 186.22, subd. (f).)” (Clark, supra, 81
Cal.App.5th at p. 146.) For reasons we have explained, we do
not agree; to establish collective engagement, the prosecution
should have established a nexus between the offenses and the
gang as a collective enterprise. There is no evidence in the
record from which a jury could have found such a nexus beyond
a reasonable doubt.
The evidence of each predicate offense was a plea
agreement that contained little information besides the fact that
Ridgeway pleaded guilty to robbery and Clark pleaded guilty to
attempted residential burglary.7 Although the expert testifying
7
As indicated, the prosecution presented evidence of
additional predicate offenses: certified convictions for
Ridgeway, who pleaded guilty to a 2009 residential burglary
with a gang enhancement, and for the three gang members with
Clark during the July 2015 break-in, who each pleaded or were
found guilty of burglary for their roles in that offense. After
amendment, section 186.22 provides that at least one of the
predicate offenses must have occurred “after the effective date
of this chapter, and the last of those offenses occurred within
three years of the prior offense and within three years of the
date the current offense.” (§ 186.22(e)(1).) The amendments
also established that the currently charged crime cannot be used
as a predicate offense (id., subd. (e)(2)). As such, evidence of
Ridgeway’s 2009 burglary and the other gang members’
participation in the current offense do not qualify as predicate
offenses under the amended statute. The Attorney General
asserts that Ridgeway’s 2009 conviction qualifies under the
amended statute, “because there was another offense committed
within three years of the charged offense.” This misreads the
25
PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
for the prosecution discussed the benefits that might flow to the
gang from the charged crimes, the prosecution did not present
evidence to establish whether the predicate offenses were
committed to benefit the gang, or whether there existed an
organizational nexus between those offenses and the gang as a
collective enterprise. “Under these circumstances, we cannot
conclude ‘beyond a reasonable doubt that the error complained
of did not contribute to the verdict obtained.’ ” (People v. Cooper,
supra, 14 Cal.5th at p. 746.
We reverse the judgment of the Court of Appeal as to
Clark’s gang enhancement, with instructions to remand to the
superior court for further proceedings consistent with this
opinion.8 The People are free on remand to offer additional
evidence to satisfy the newly enacted requirements of section
186.22. (See People v. Cooper, supra, 14 Cal.5th at p. 746
[reversing the pre-Assem. Bill 333 gang enhancement for
timing requirements. The two 2014 convictions (one for
Ridgeway and one for Clark) are within three years of the
charged offense, but Ridgeway’s prior 2009 conviction is not
within three years of those offenses.
8
We disapprove People v. Delgado, supra, 74 Cal.App.5th
1067, to the extent it articulates an interpretation of the
collective engagement requirement different from the one we
have described here. Similarly, we disapprove of People v.
Lopez, supra, 73 Cal.App.5th 327, to the extent the court’s
implicit assumptions about the meaning of collective
engagement may conflict with this opinion. Recognizing the
conflict between the Courts of Appeal in Delgado and in this
case, the court in Rodas-Gramajo v. Superior Court (2023) 92
Cal.App.5th 656 assumed that Delgado’s interpretation applied,
requiring predicate offenses to be committed by two gang
members acting in concert. (Id. at p. 668 & fn. 7.) We
disapprove of that portion of Rodas-Gramajo v. Superior Court,
supra, 92 Cal.App.5th 656 as well.
26
PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
insufficient proof and recognizing authority entitling the People
to retry the affected charges on remand].
KRUGER J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
GROBAN, J.
JENKINS, J.
EVANS, J.
27
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Clark
Procedural Posture (see XX below
Original Appeal
Original Proceeding
Review Granted (published) XX 81 Cal.App.5th 133
Review Granted (unpublished)
Rehearing Granted
Opinion No. S275746
Date Filed: February 22, 2024
Court: Superior
County: Riverside
Judge: Bambi J. Moyer
Counsel:
Patrick Morgan Ford, under appointment by the Supreme Court, for
Defendant and Appellant.
Sylvia Perez MacDonald, Lana M. Kreidie; and William Safford for
Santa Clara County Independent Defense Counsel Office as Amicus
Curiae on behalf of Defendant and Appellant.
Sean Garcia-Leys for Peace and Justice Law Center as Amicus Curiae
on behalf of Defendant and Appellant.
Sixth District Appellate Program and Jonathan Grossman for Pacific
Juvenile Defender Center as Amicus Curiae on behalf of Defendant
and Appellant.
Mary K. McComb, State Public Defender, and Elias Batchelder,
Deputy State Public Defender, for Office of the State Public Defender
as Amicus Curiae on behalf of Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland and Charles C. Ragland, Assistant
Attorneys General, Steve Oetting, Alana Cohen Butler and Paige B.
Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Patrick Morgan Ford
Attorney at Law
1901 First Avenue, Suite 400
San Diego, CA 92101
(619) 236-0679
Paige B. Hazard
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 540-0201
Opinion Information
| Date: | Docket Number: |
| Thu, 02/22/2024 | S275746 |
