Supreme Court of California Justia
Citation 57 Cal.4th 250, 159 Cal. Rptr. 3d 70, 303 P.3d 379 (2013)

People v. Johnson


Filed 7/18/13

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S202790
v.
Ct.App. 5 F057736
COREY RAY JOHNSON,
Kern County
Defendant and Appellant.
Super. Ct. No. BF122135A
____________________________________)
THE PEOPLE,
Plaintiff and Respondent,
v.
Ct.App. 5 F057736
JOSEPH KEVIN DIXON,
Kern County
Defendant and Appellant.
Super. Ct. No. BF122135B
____________________________________)
THE PEOPLE,
Plaintiff and Respondent,
v.
Ct.App. 5 F057736
DAVID LEE, JR.,
Kern County
Defendant and Appellant.
Super. Ct. No. BF122135C

1



We granted review to decide whether one may conspire to actively
participate in a criminal street gang.1 One can. When an active gang participant
possessing the required knowledge and intent agrees with fellow gang members to
commit a felony, he has also agreed to commit the gang participation offense.
That agreement constitutes conspiracy to commit the offense of active gang
participation, and may be separately charged once a conspirator has committed an
overt act.
I. BACKGROUND
Defendants Corey Ray Johnson, Joseph Kevin Dixon, and David Lee, Jr.,
were part of a 200-member Bakersfield gang called the Country Boy Crips (CBC).
CBC‟s rival gangs included the Eastside Crips and the Bloods. Dupree Jackson, a
CBC member, testified for the prosecution under a grant of immunity. He was
defendant Johnson‟s cousin and sold drugs for the gang. He described the gang‟s
structure and the different roles members filled. Some sold drugs. Some patrolled
the boundaries of the gang‟s territory to keep out enemies and outsiders. Some
would “hang out,” and some were “pretty boys” who brought women into the
gang. Others would “ride with the guns” to seek out and kill enemies. Defendant
Johnson sold drugs and was also a shooter for the gang with the moniker “Little
Rifleman.” Defendant Dixon was considered a gang leader because he had been
to prison and had family ties to the gang. Defendant Lee would sell drugs, obtain
cars, and drive for and “ride” with other gang members.
1
Penal Code sections 182, 186.22, subdivision (a) (hereafter section
186.22(a), the gang participation offense, or active gang participation).
Subsequent statutory references will be to the Penal Code unless noted.
2

Testimony of several witnesses established that between March and August
2007, defendants were involved in various retaliatory shootings against perceived
rivals. On March 21, 2007, members of the Bloods shot Lee. He and Johnson
retaliated by shooting Bloods member Edwin McGowan. Lee was fired upon
again the following day. All three defendants were then involved in a retaliatory
shooting on April 19, 2007, outside an apartment in Eastside Crips territory.
Vanessa Alcala and James Wallace, neither of whom was a gang member, were
killed during the incident. Ms. Alcala was pregnant. Anthony Lyons was also
shot but survived. On August 9, 2007, a fellow CBC member was shot and killed.
Defendants and Jackson identified the shooter, armed themselves, and drove to the
home of the shooter‟s father. They intended to retaliate but were scared away
when a car drove by. Two days later, Johnson, accompanied by Dixon and Lee,
shot Adrian Bonner, a Bloods associate, paralyzing him. Jackson related
statements Johnson and Dixon made about the shootings.
Johnson‟s girlfriend, Sara Augustin, also testified under a grant of
immunity. She recounted various statements Lee and Johnson made about their
involvement in the shootings. DNA testing of clothing found near the apartment
shooting scene was linked to defendants, primarily to Johnson. Cell phone records
reflected Dixon‟s and Lee‟s cell phones were at the location of the various
shootings and were used to call each other or other CBC members before and after
the events. Various witnesses gave descriptions of the participants that matched
all three defendants.
The jury convicted all defendants of three counts of first degree murder
with multiple-murder and gang-murder special circumstances, two counts of
attempted murder, shooting at an occupied vehicle, active gang participation, and
3

conspiracy,2 as well as various enhancements.3 Conspiracy was charged as a
single count against each defendant. That count alleged each had engaged in
conspiracy to commit felony assault, robbery, murder, and gang participation. The
jury found each defendant guilty of conspiracy as charged. All defendants
received three terms of life without the possibility of parole for the murder counts.
Dixon received an additional term of 238 years to life, while Johnson and Lee
received additional terms of 196 years to life. Those terms included a term of 25
years to life for conspiracy as to Johnson and Lee, and 50 years to life as to Dixon
(25 years to life, doubled under the “Three Strikes” law).
As relevant here, the Court of Appeal held that conspiracy to actively
participate in a criminal street gang did not qualify as a crime. It affirmed the
conspiracy convictions, however, because each was also based on the valid theory
of conspiracy to commit murder. We granted the Attorney General‟s petition for
review.
II. DISCUSSION
A. The Law of Conspiracy
Section 182 prohibits a conspiracy by two or more people to “commit any
crime.” (§ 182, subd. (a)(1).) “A conviction of conspiracy requires proof that the
defendant and another person had the specific intent to agree or conspire to
2
Sections 187, subdivision (a), 190.2, subdivision (a)(3), (22), 664/187, 246,
186.22, subdivision (a), 182, subdivision (a)(1), 186.22, subdivision (b)(1),
12022.53, subdivisions (d), (e)(1).
3
Johnson and Lee were additionally convicted of the attempted murder of
McGowan and related enhancements. Dixon was additionally convicted of two
counts of being a felon with a firearm (former § 12021, subd. (a)(1)) with a gang
enhancement. Dixon was also found to have a prior serious felony conviction and
served a prior prison term. (§§ 667.5, subd. (b), 1170.12.)
4

commit an offense, as well as the specific intent to commit the elements of that
offense, together with proof of the commission of an overt act „by one or more of
the parties to such agreement‟ in furtherance of the conspiracy.” (People v.
Morante (1999) 20 Cal.4th 403, 416 (Morante); § 184; see also People v. Homick
(2012) 55 Cal.4th 816, 870 (Homick).) “[T]he law of attempt and conspiracy
covers inchoate crimes and allows intervention before” the underlying crime has
been completed. (People v. Perez (2005) 35 Cal.4th 1219, 1232.)
Criminal activity exists along a continuum. At its conclusion is the
commission of a completed crime, like murder. The principle of attempt
recognizes that some measure of criminal culpability may attach before a
defendant actually completes the intended crime. Thus, a person who tries to
commit a crime but who fails, or is foiled, may still be convicted of an attempt to
commit that crime. Yet, attempt still involves both mens rea and actus reus. “An
attempt to commit a crime consists of . . . a specific intent to commit the crime,
and a direct but ineffectual act done toward its commission.” (§ 21a.) To ensure
that attempt principles do not punish a guilty mental state alone, an act toward the
completion of the crime is required before an attempt will be recognized. “When
a defendant acts with the requisite specific intent, that is, with the intent to engage
in the conduct and/or bring about the consequences proscribed by the attempted
crime [citation], and performs an act that „go[es] beyond mere preparation . . .
and . . . show[s] that the perpetrator is putting his or her plan into action‟ [citation],
the defendant may be convicted of criminal attempt.” (People v. Toledo (2001) 26
Cal.4th 221, 230, fn. omitted, quoting People v. Kipp (1998) 18 Cal.4th 349, 376.)
For example, if a person decides to commit murder but does nothing more, he has
committed no crime. If he buys a gun and plans the shooting, but does no more,
he will not be guilty of attempt. But if he goes beyond preparation and planning
and does an act sufficiently close to completing the crime, like rushing up to his
5

intended victim with the gun drawn, that act may constitute an attempt to commit
murder.4
Conspiracy law attaches culpability at an earlier point along the continuum
than attempt. “Conspiracy is an inchoate offense, the essence of which is an
agreement to commit an unlawful act.” (Iannelli v. United States (1975) 420 U.S.
770, 777 (Iannelli); Homick, supra, 55 Cal.4th at p. 870; People v. Marsh (1962)
58 Cal.2d 732, 743.) Conspiracy separately punishes not the completed crime, or
even its attempt. The crime of conspiracy punishes the agreement itself and “does
not require the commission of the substantive offense that is the object of the
conspiracy.” (People v. Swain (1996) 12 Cal.4th 593, 599.) “Traditionally the
law has considered conspiracy and the completed substantive offense to be
separate crimes.” (Iannelli, supra, 420 U.S. at p. 777.)
Under our statute, an agreement to commit a crime, by itself, does not
complete the crime of conspiracy. The commission of an overt act in furtherance
of the agreement is also required. “No agreement amounts to a conspiracy, unless
some act, beside such agreement, be done within this state to effect the object
thereof, by one or more of the parties to such agreement . . . .” (§ 184.) “ „[A]n
4
See, e.g., People v. Anderson (1934) 1 Cal.2d 687, 690 (“Defendant‟s
conduct in concealing the gun on his person and going to the general vicinity of
the Curran theatre with intent to commit robbery may . . . be classified as mere
acts of preparation but when he „walked in there [Curran Theatre entrance] about
two feet from the grill‟ and „pulled out the gun‟ and „was just going to put it up in
the cage when it went off‟, we are satisfied that his conduct passed far beyond the
preparatory stage and constituted direct and positive overt acts that would have
reasonably tended toward the perpetration of the robbery . . . .”); People v.
Morales
(1992) 5 Cal.App.4th 917, 927 (substantial evidence of attempted murder
where the defendant “loaded his gun, drove to his victim‟s neighborhood, and
finally hid in a position that would give him a clear shot at [the victim] if [the
victim] left by the front door”).
6

overt act is an outward act done in pursuance of the crime and in manifestation of
an intent or design, looking toward the accomplishment of the crime.‟
[Citations.]” (People v. Zamora (1976) 18 Cal.3d 538, 549, fn. 8.) One purpose
of the overt act requirement “is „to show that an indictable conspiracy exists‟
because „evil thoughts alone cannot constitute a criminal offense.‟ [Citations.]”
(People v. Russo (2001) 25 Cal.4th 1124, 1131.) The overt act requirement also
“provide[s] a locus penitentiae—an opportunity for the conspirators to reconsider,
terminate the agreement, and thereby avoid punishment for the conspiracy.”
(Zamora, supra, 18 Cal.3d at p. 549, fn. 8; see also Russo, supra, 25 Cal.4th at p.
1131; Morante, supra, 20 Cal.4th at p. 416, fn. 4.) Once one of the conspirators
has performed an overt act in furtherance of the agreement, “the association
becomes an active force, it is the agreement, not the overt act, which is punishable.
Hence the overt act need not amount to a criminal attempt and it need not be
criminal in itself.” (People v. George (1968) 257 Cal.App.2d 805, 808, italics
omitted; see People v. Hoyos (2007) 41 Cal.4th 872, 915, overruled on another
ground in People v. McKinnon (2011) 52 Cal.4th 610, 641.)
B. Conspiracy to Commit Active Gang Participation a Valid Offense
“The elements of the gang participation offense in section 186.22(a) are:
First, active participation in a criminal street gang, in the sense of participation
that is more than nominal or passive; second, knowledge that the gang‟s members
engage in or have engaged in a pattern of criminal gang activity; and third, the
willful promotion, furtherance, or assistance in any felonious criminal conduct by
members of that gang. [Citation.] A person who is not a member of a gang, but
who actively participates in the gang, can be guilty of violating section 186.22(a).
(§ 186.22, subd. (i).)” (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130
(Rodriguez).) A criminal street gang is defined as “any ongoing organization,
association, or group of three or more persons, whether formal or informal, having
7

as one of its primary activities the commission of [enumerated offenses], having a
common name or common identifying sign or symbol, and whose members
individually or collectively engage in or have engaged in a pattern of criminal
gang activity.” (§ 186.22, subd. (f).) A pattern of criminal gang activity is “the
commission of, attempted commission of, conspiracy to commit, or solicitation of,
sustained juvenile petition for, or conviction of two or more [enumerated
offenses].” (§ 186.22, subd. (e).)
The Attorney General argues conspiracy to commit active gang
participation comes within the plain language of sections 182 and 186.22(a).
Recognizing such an offense would be neither contrary to legislative intent nor
violative of due process. In evaluating this claim, “[w]e begin with the familiar
canon that, when construing statutes, our goal is „ “ „to ascertain the intent of the
enacting legislative body so that we may adopt the construction that best
effectuates the purpose of the law.‟ ” ‟ [Citation.]” (People v. Albillar (2010) 51
Cal.4th 47, 54-55 (Albillar).) “ „When interpreting statutes, we begin with the
plain, commonsense meaning of the language used by the Legislature. [Citation.]
If the language is unambiguous, the plain meaning controls.‟ [Citation.]”
(Rodriguez, supra, 55 Cal.4th at p. 1131.)
Nothing in the plain language of both sections 182 and 186.22(a) supports
the Court of Appeal‟s holding. The offense of conspiracy to “commit any crime”
was included in the original 1872 Penal Code. When the Legislature added
section 186.22 in 1989 (Stats. 1989, ch. 930, § 5.1, p. 3253), it expressed no
intention to preclude a conviction for a conspiracy to commit the crime of active
gang participation. Entering its 15th decade since enactment, section 182
continues to prohibit a conspiracy to commit “any crime.” (§ 182, subd. (a)(1).)
Concluding that one can conspire to actively participate in a gang is fully
consistent with the underlying purposes of section 186.22(a). That provision is
8

part of the California Street Terrorism Enforcement and Prevention Act (STEP
Act). “Underlying the STEP Act was the Legislature‟s recognition that „California
is in a 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.‟ (Pen. Code, § 186.21.) The act‟s
express purpose was „to seek the eradication of criminal activity by street gangs.‟
(Ibid.)” (People v. Gardeley (1996) 14 Cal.4th 605, 609; see also Rodriguez,
supra, 55 Cal.4th at p. 1129.) In concluding the felonious conduct underlying the
gang participation offense need not be gang related, we observed in Albillar:
“Gang members tend to protect and avenge their associates. Crimes committed by
gang members, whether or not they are gang related or committed for the benefit
of the gang, thus pose dangers to the public and difficulties for law enforcement
not generally present when a crime is committed by someone with no gang
affiliation. „These activities, both individually and collectively, present a clear and
present danger to public order and safety . . . .‟ (Pen. Code, § 186.21.)” (Albillar,
supra, 51 Cal.4th at p. 55.) Recognizing conspiracy to commit active gang
participation as a valid offense furthers these purposes by affording prosecutors
additional charging options in gang cases, and making additional punishment
available.
The Court of Appeal found a contrary intent expressed in section 182.5, a
different statute enacted by voters as part of Proposition 21. Section 182.5 defines
the following conduct as a type of conspiracy: “Notwithstanding subdivisions (a)
or (b) of Section 182, any person who actively participates in any criminal street
gang, as defined in subdivision (f) of Section 186.22, with knowledge that its
members engage in or have engaged in a pattern of criminal gang activity, as
defined in subdivision (e) of Section 186.22, and who willfully promotes, furthers,
assists, or benefits from any felonious criminal conduct by members of that gang
9

is guilty of conspiracy to commit that felony and may be punished as specified in
subdivision (a) of Section 182.” The Legislative Analyst‟s comments appeared in
the ballot pamphlet, and stated that the measure would “expand[] the law on
conspiracy to include gang-related activities.” (Ballot Pamp., Primary Elec. (May
7, 2000) analysis by Leg. Analyst, p. 46, italics added.) The Court of Appeal
concluded that “this is an implicit recognition that the general conspiracy statute
could not be applied to section 186.22, subdivision (a) because a criminal street
gang was itself a species of conspiracy.” In this the court erred. Its interpretation
would rely on the language of the ballot statement to limit existing law when the
intended effect of the measure was to expand the law to encompass gang-related
activities more broadly.
Section 182.5 created a new form of conspiracy that is distinct from the
traditional understanding of the crime in five significant ways. First, under
traditional conspiracy principles, when two or more defendants conspire to
commit a substantive offense, they need not have previously known each other,
have any ongoing association, or plan to associate in any way beyond the
commission of the substantive offense.5 Traditional conspiracy, then,
encompasses a stand-alone agreement by former strangers to commit a single
5
See U.S. v. Feinberg (7th Cir. 1941) 123 F.2d 425, 427 (“Since there was a
general plan in which all of the defendants participated, it is immaterial when any
of the parties entered or whether some of those participating were strangers to
each other, [citation]; they were all engaged in a common unlawful purpose and
each and all contributed their part to the criminal conspiracy.”); cf. In re Nathaniel
C.
(1991) 228 Cal.App.3d 990, 1000 (“When a conspiracy has formed, and a
stranger to the conspiracy then associates himself with the conspirators, and with
knowledge of the conspiracy joins the others in committing overt acts in
furtherance of the unlawful purpose, then he is guilty as a member of the
conspiracy.”).
10

crime. In order to violate section 182.5 and, thus, commit a “182.5 conspiracy,” a
defendant cannot be a complete stranger to the gang. He or she must be an active
gang participant with knowledge of other members‟ pattern of criminal gang
activity.
Second, a traditional conspiracy encompasses an agreement to commit “any
crime.” (§ 182, subd. (a)(1).) Therefore, it is possible to conspire to commit a
misdemeanor. (See People v. Proctor (1993) 18 Cal.App.4th 1055, 1061 [noting a
conspiracy to commit a misdemeanor under section 182 constitutes a “wobbler”];
cf. People v. Prevost (1998) 60 Cal.App.4th 1382, 1400-1402 [conspiracy to
commit a misdemeanor governed by the three-year statute of limitations for
felonies].) A 182.5 conspiracy relates only to the commission of a felony.
Third, traditional conspiracy requires both the specific intent to agree, and
specific intent to commit a target crime. (Morante, supra, 20 Cal.4th at p. 416.) A
182.5 conspiracy does not require any prior agreement among the conspirators to
promote, further, or assist in the commission of a particular target crime. Even
without a prior agreement, an active and knowing gang participant who acts with
the required intent to promote, further, or assist in the commission of a felony by
other gang members can violate section 182.5. That act of assistance or promotion
replaces the required prior agreement to commit a crime that is ordinarily at the
heart of a traditional conspiracy.
Fourth, traditional conspiracy liability attaches once an overt act is
committed. A 182.5 conspiracy requires the actual commission of felonious
criminal conduct as either an attempt or a completed crime.
Fifth, section 182.5 brings within its ambit not only a gang member who
promotes, furthers, or assists in the commission of a felony. It also embraces an
active and knowing participant who merely benefits from the crime‟s commission,
even if he or she did not promote, further, or assist in the commission of that
11

particular substantive offense. This constitutes a substantial expansion of a
traditional conspiracy application. The “one who benefits” provision recognizes
that gang activities both individually and collectively endanger the public and
contribute to the perpetuation of the gang members‟ continued association for
criminal purposes. Due to the organized nature of gangs, active gang participants
may benefit from crimes committed by other gang members. When such benefits
are proven along with the other elements of the statute, section 182.5 permits those
benefitting gang participants to be convicted of conspiracy to commit the specific
offense from which they benefitted.
The creation of a new basis for conspiracy liability under section 182.5
does not reflect a legislative intent to preclude the use of section 186.22(a) as an
object of a traditional conspiracy under section 182. Indeed, sections 182 and
182.5 are quite different provisions covering different kinds of conduct. If
evidence reflects that an active and knowing gang participant, acting with the
required intent, agrees with other gang members to commit a felony, and an overt
act in furtherance of the plan has been committed, a prosecutor may charge a
traditional conspiracy to commit the gang participation offense under section 182,
even if the target offense is not ultimately committed. Rather than expressing an
intent to limit the scope of section 182, the enactment of section 182.5 provided
prosecutors additional flexibility in charging a different kind of conspiracy,
consistent with the Legislative Analyst‟s statement that the new provision
“expand[ed] the law on conspiracy to include gang-related activities.” (Ballot
Pamp., Primary Elec. (Mar. 7, 2000) analysis of Prop. 21 by Leg. Analyst, p. 46.)
The Court of Appeal suggested in a footnote that its decision would be the
same whether a conspiracy to commit the gang participation offense was viewed
as “ „an absurd redundancy‟ that results in unconstitutional vagueness” or a
“ „conclusive legal falsehood.‟ ” Recognizing such an offense would result in
12

neither. The Attorney General points to analogous federal statutes, such as the
Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C. § 1961 et
seq.), which criminalizes the maintenance of a group engaging in racketeering
activity, including the commission of various felonies such as murder, robbery,
and extortion. Likewise, the Smith Act (18 U.S.C. § 2385) criminalizes the
organization of a group advocating the violent overthrow of the government. Both
criminalize conduct involving multiple participants and may involve predicate
conspiracies. Both recognize, as a separate offense, a conspiracy to violate its
provisions. (See 18 U.S.C. § 1962(d) [RICO conspiracy]; 18 U.S.C. § 2385
[Smith Act]; U.S. v. Fernandez (9th Cir. 2004) 388 F.3d 1199, 1259 [“It is a well-
established principle of RICO law . . . that predicate racketeering acts that are
themselves conspiracies may form the basis for a charge and eventual conviction
of conspiracy under § 1962(d).”].)
Defendants contend recognizing the crime of conspiracy to commit the
gang participation offense would be illogical. They argue that because conspiracy
requires an agreement to commit every element of the target offense, and active
gang participation requires knowledge of the gang‟s pattern of criminal gang
activity, conspiracy to commit active gang participation would absurdly require
that conspirators “agree” to have such knowledge. Defendants misconstrue the
requirements of section 182, subdivision (a). “A conviction of conspiracy requires
proof that the defendant and another person had the specific intent to agree or
conspire to commit an offense, as well as the specific intent to commit the
elements of that offense, together with proof of the commission of an overt
act . . . .” (Morante, supra, 20 Cal.4th at p. 416, italics added; see also People v.
Jurado (2006) 38 Cal.4th 72, 120.) Conspirators must agree to the commission of
a criminal act. They also have to possess certain kinds of knowledge and criminal
intent. In other words, they agree to the act while possessing a given mens rea. It
13

would be imprecise to say that they “agree” to have a certain knowledge or mental
state. Instead, to satisfy the elements of traditional conspiracy, they agree to an
act, and they do so while possessing the required mental state.
Further, they need not expressly agree at all: “To prove an agreement, it is
not necessary to establish the parties met and expressly agreed; rather, „a criminal
conspiracy may be shown by direct or circumstantial evidence that the parties
positively or tacitly came to a mutual understanding to accomplish the act and
unlawful design.‟ [Citation.]” (People v. Vu (2006) 143 Cal.App.4th 1009, 1025,
italics added.) As explained below, defendants‟ agreement to commit the various
gang shootings here exhibited their intent not only to commit those particular
shootings, but also to actively participate in their gang.
Defendants‟ analogy to People v. Iniguez (2002) 96 Cal.App.4th 75 is
inapt. The court there held that one could not conspire to commit attempted
murder “because the crime of attempted murder requires a specific intent to
actually commit the murder, while the agreement underlying the conspiracy
pleaded to contemplated no more than an ineffectual act.” (Id. at p. 79.) Stated
another way, under a traditional conspiracy approach, one cannot conspire to try to
commit a crime. An agreement to commit a crime is required, even if nothing
more than an overt act is ultimately done. By contrast, the conspiracy to commit
the gang participation offense does not contemplate an agreement to commit an
ineffectual act. Under the traditional application of section 182, a conspiracy to
violate section 186.22(a) requires that a defendant be an active and knowing gang
participant and agree to willfully promote, further, or assist gang members in the
commission of an intended target felony. Unlike Iniguez, there is no logical
impossibility or absurdity in recognizing the crime of conspiracy to actively
participate in a gang.
14

Defendants argue the so-called Wharton‟s Rule should preclude recognition
of conspiracy to commit gang participation. The rule “owes its name to Francis
Wharton, whose treatise on criminal law identified the doctrine and its
fundamental rationale . . . .” (Iannelli, supra, 420 U.S. at p. 773.) The rule states
“[w]here the cooperation of two or more persons is necessary to the commission
of the substantive crime, and there is no ingredient of an alleged conspiracy that is
not present in the substantive crime, then the persons necessarily involved cannot
be charged with conspiracy to commit the substantive offense and also with the
substantive crime itself.” (People v. Mayers (1980) 110 Cal.App.3d 809, 815; see
also People v. Lee (2006) 136 Cal.App.4th 522, 530.) Classically, Wharton‟s Rule
applies to crimes that an individual could not commit acting alone. Wharton‟s
Rule “has current vitality only as a judicial presumption, to be applied in the
absence of legislative intent to the contrary.” (Iannelli, supra, 420 U.S. at p. 782.)
“[T]he Rule is essentially an aid to the determination of legislative intent [and]
must defer to a discernible legislative judgment.” (Id. at p. 786.)
The presumption of Wharton‟s Rule has no application here. “The classic
Wharton‟s Rule offenses—adultery, incest, bigamy, duelling—are crimes that are
characterized by the general congruence of the agreement and the completed
substantive offense. The parties to the agreement are the only persons who
participate in commission of the substantive offense, and the immediate
consequences of the crime rest on the parties themselves rather than on society at
large. [Citation.] Finally, the agreement that attends the substantive offense does
not appear likely to pose the distinct kinds of threats to society that the law of
conspiracy seeks to avert. It cannot, for example, readily be assumed that an
agreement to commit an offense of this nature will produce agreements to engage
in a more general pattern of criminal conduct.” (Iannelli, supra, 420 U.S. at pp.
782-784, fns. omitted.) Iannelli concluded Wharton‟s Rule had no application to
15

the federal gambling statute at issue there: “The conduct proscribed by [18 United
States Code section 1955] is significantly different from the offenses to which the
Rule traditionally has been applied. Unlike the consequences of the classic
Wharton‟s Rule offenses, the harm attendant upon the commission of the
substantive offense is not restricted to the parties to the agreement. Large-scale
gambling activities seek to elicit the participation of additional persons—the
bettors—who are parties neither to the conspiracy nor to the substantive offense
that results from it. Moreover, the parties prosecuted for the conspiracy need not
be the same persons who are prosecuted for commission of the substantive
offense. An endeavor as complex as a large-scale gambling enterprise might
involve persons who have played appreciably different roles, and whose level of
culpability varies significantly. . . . Nor can it fairly be maintained that
agreements to enter into large-scale gambling activities are not likely to generate
additional agreements to engage in other criminal endeavors.” (Iannelli, supra,
420 U.S. at p. 784.)
Similar reasoning applies here. The immediate harm flowing from the gang
participation offense is not limited to its participants. Indeed, an integral
component of a criminal street gang is to commit felonies against others. (See
§ 186.22, subd. (f).) Like the large-scale gambling operation at issue in Iannelli, a
criminal street gang also involves a network of participants with different roles
and varying kinds of involvement. The gang at issue here had over 200 members
who performed diverse functions. Further, it cannot be said that active gang
participation is not likely to generate additional criminal agreements. To the
contrary, the gang structure makes such agreements much easier and more likely.
These circumstances provide no justification for applying the presumption of
Wharton‟s Rule. (See U.S. v. Nascimento (1st Cir. 2007) 491 F.3d 25, 48-49
[rejecting application of Wharton‟s Rule to a RICO conspiracy]; U.S. v. Marino
16

(1st Cir. 2002) 277 F.3d 11, 39 [same]; see also U.S. v. McNair (11th Cir. 2010)
605 F.3d 1152, 1215-1216 [rejecting application of Wharton‟s Rule to a
conspiracy to violate the federal bribery statute]; U.S. v. Ruhbayan (4th Cir. 2005)
406 F.3d 292, 300-301 [rejecting application of Wharton‟s Rule to a conspiracy to
commit witness tampering and suborning perjury].)
C. Elements of the Offense and Application to this Case
As noted, a conspiracy requires an intentional agreement to commit the
offense, a specific intent that one or more conspirators will commit the elements of
that offense, and an overt act in furtherance of the conspiracy. (Morante, supra,
20 Cal.4th at p. 416.) The gang participation offense requires (1) participation in a
gang that is more than nominal or passive, (2) knowledge of the gang‟s pattern of
criminal gang activity, and (3) the willful promotion, furtherance, or assistance in
felonious conduct by gang members. (Rodriguez, supra, 55 Cal.4th at p. 1130.)
A conspiracy to commit the gang participation offense may be committed,
as here, by already-active gang participants. “The gist of the crime of conspiracy
. . . is the agreement or confederation of the conspirators to commit one or more
unlawful acts . . . .” (Braverman v. United States (1942) 317 U.S. 49, 53.)
“[W]hen a single agreement to commit one or more substantive crimes is
evidenced by an overt act, . . . the precise nature and extent of the conspiracy must
be determined by reference to the agreement which embraces and defines its
objects.” (Ibid.) “A single agreement to commit several crimes constitutes one
conspiracy.” (United States v. Broce (1989) 488 U.S. 563, 570-571.) “ „One
agreement gives rise to only a single offense, despite any multiplicity of objects.‟ ”
(People v. Lopez (1994) 21 Cal.App.4th 1551, 1557.)
The evidence established that defendants were active participants in CBC.
Dixon was a gang leader. Johnson, “Little Rifleman,” was a shooter and drug
dealer for the gang. Lee sold drugs, obtained cars, and participated in gang
17

shootings. There was also little question from defendants‟ conduct that they had
the requisite knowledge of CBC‟s pattern of criminal gang activity, having
committed much of it themselves. In this context, defendants agreed to commit
various retaliatory shootings against rival gang members. Under these
circumstances, once defendants agreed to commit a specific crime, for example,
shooting a rival in retaliation, the agreement constituted a conspiracy to commit
murder and assault. The agreement could also constitute a conspiracy to commit
the conduct required to complete the gang participation offense. The agreement
exhibited defendants‟ intent to commit all of the elements of substantive gang
participation. Their agreement, coupled with their manifest participation in, and
knowledge of, the gang‟s activities, constituted an agreement to further, promote
or assist the felonious act of shooting rival gang members. Their agreement
promoted commission of the shootings, making them more likely. Thus, just as a
single agreement to kill someone with a firearm would encompass a conspiracy to
commit both murder and assault with a firearm, a single agreement among active
gang participants to commit a shooting with other gang members would
additionally encompass a conspiracy to commit the gang participation offense.
The conspiracy was completed once one of them committed an overt act toward
the shooting.
D. Conclusion
The plain language of both sections 182 and 186.22(a) reflects no
legislative intent to preclude a conviction for a traditional conspiracy to commit
the gang participation offense. While section 186.22(a) makes no reference to the
conspiracy statute, neither do statutes outlawing murder or robbery. Such mention
is unnecessary because section 182, subdivision (a)(1) expressly encompasses the
agreement to commit “any crime.” The stated purposes of the STEP Act are
entirely consistent with recognizing the crime of conspiracy to commit the
18

substantive gang participation offense. A contrary legislative intent cannot be
inferred from the electorate‟s enactment of section 182.5, which expanded liability
by creating a new kind of criminal conspiracy in the gang context. Defendants
were active gang members, well aware of each other‟s active status and the gang‟s
pattern of criminal gang activity. Their agreement to commit the various
shootings here constituted an agreement to commit the gang participation offense
and, once an overt act was performed, all the elements of conspiracy to violate
section 186.22(a) were satisfied.
III. DISPOSITION
We reverse the Court of Appeal‟s judgment and remand for further
proceedings consistent with this opinion.
CORRIGAN, J.
WE CONCUR:

CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
LIU, J.

19

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

Name of Opinion People v. Johnson
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 205 Cal.App.4th 594
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S202790
Date Filed: July 18, 2013
__________________________________________________________________________________

Court:

Superior
County: Kern
Judge: Gary T. Friedman
__________________________________________________________________________________

Counsel:

Susan D. Shors, under appointment by the Supreme Court, for Defendant and Appellant Corey Ray
Johnson.

Joseph Shipp, under appointment by the Supreme Court, for Defendant and Appellant Joseph Kevin Dixon.

Sharon G. Wrubel, under appointment by the Supreme Court, for Defendant and Appellant David Lee, Jr.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Susan Lee,
Acting Solicitor General, Donald E. de Nicola, Deputy State Solicitor General, Michael P. Farrell,
Assistant Attorney General, Brian G. Smiley and Laura Wetzel Simpton, Deputy Attorneys General, for
Plaintiff and Respondent.



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

Sharon G. Wrubel
Post Office Box 1240
Pacific Palisades, CA 90272
(310) 459-4689

Laura Wetzel Simpton
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 322-3674


Petition for review after the Court of Appeal reversed in part and affirmed in part judgments of conviction of criminal offenses. This case presents the following issue: Is there a crime of conspiracy to commit the offense of active participation in a criminal street gang in violation of Penal Code section 186.22, subdivision (a)?

Opinion Information
Date:Citation:Docket Number:
Thu, 07/18/201357 Cal.4th 250, 159 Cal. Rptr. 3d 70, 303 P.3d 379 (2013)S202790

Opinion Authors
OpinionJustice Carol A. Corrigan

Jun 1, 2014
Annotated by Hamida Owusu

Facts:

A jury convicted defendants Corey Ray Johnson, Joseph Kevin Dixon, and David Lee, Jr. for participating in various gang-related, retaliatory shootings in 2007. Testimony was given identifying the three defendants as members of the Bakersfield gang, the Country Boy Crips. Their assorted convictions included: three counts of first degree murder, with multiple-murder and gang-murder special circumstances; two counts of attempted murder; shooting at an occupied vehicle; active gang participation, conspiracy, and various enhancements (facts and circumstances that allow the judge to increase the sentence that would normally be given for the crimes). Regarding the conspiracy conviction, each defendant was found guilty of conspiracy to commit felony assault, robbery, murder, and gang participation.

Procedural History:

Defendants appealed the convictions handed down in Kern County Superior Court. The Court of Appeal then reversed and modified portions of the trial court’s judgment, but ultimately affirmed the convictions. The appellate court also ruled that the defendants could not be convicted of conspiracy to commit the gang participation offense because it was not a valid crime. The conspiracy convictions were upheld, however, because each defendant had been properly charged with conspiracy to commit murder. Defendants and the Attorney General petitioned the California Supreme Court for review. The Court agreed to review the case to answer the question whether conspiracy to commit active gang participation is, in fact, a valid crime.

Issues:

Can a defendant conspire to actively participate in a criminal street gang? More specifically, can a defendant be separately charged with conspiracy to commit the offense of gang participation listed in Cal. Penal Code § 186.22(a)?

Holding:

Yes. When an active gang participant, who has the required knowledge and intent to commit a crime, agrees with fellow gang members to commit a felony, the participant has also agreed to commit the crime of gang participation. Once a conspirator performs an overt act (i.e. takes some action with furthers the pursuit of the crime and demonstrates an intent to complete the crime) the participant may also be separately charged with conspiracy to commit the gang participation offense listed in Cal. Penal Code § 186.22(a).

The California Supreme Court reversed the Court of Appeal’s judgment and remanded (returned) the case back to the lower court for further proceedings consistent with its ruling. Justice Carol A. Corrigan wrote the majority opinion. Chief Justice Tani Gorre Cantil-Sakauye, and Associate Justices Joyce L. Kennard, Marvin R. Baxter, Kathryn M. Werdegar, Ming W. Chin, and Goodwin Liu concurred in the opinion.

Analysis:

The Court began by reviewing traditional concepts of attempt and conspiracy law. It noted that “[c]riminal activity exists along a continuum . . . and some measure of criminal culpability may attach before a defendant actually completes the intended crime.” In fact, culpability for conspiracy attaches “at an earlier point along the continuum than attempt . . . .” and “does not require the commission of the substantive offense that is the object of the conspiracy.” (People v. Swain (1996), 12 Cal.4th 593, 599, 49 Cal.Rptr.2d 390, 909 P.2d 994.) Further, “[t]raditionally the law has considered conspiracy and the completed substantive offense to be separate crimes.” (Iannelli, 420 U.S. at p. 777, 95 S.Ct. 1284.)

Under California law, conspiracy requires both an agreement and an overt act. This helps avoid punishing a person for merely having guilty thoughts, and provides a “locus penitentiae—an opportunity for the conspirators to reconsider, terminate the agreement, and thereby avoid punishment for the conspiracy." (Zamora, supra, 18 Cal.3d at p. 549, fn. 8, 134 Cal.Rptr. 784, 557 P.2d 75; see also Russo, supra, 25 Cal.4th at p. 1131, 108 Cal.Rptr.2d 436, 25 P.3d 641; Morante, supra, 20 Cal.4th at p. 416, fn. 4, 84 Cal.Rptr.2d 665, 975 P.2d 1071.) Once a conspirator performs an overt act in furtherance of the agreement, “the association becomes an active force” and it is the agreement itself which is punishable.

Next, the Court interpreted the language of the relevant criminal statutes, and found nothing in either Cal. Penal Code § 182 (which prohibits a conspiracy by two or more people to “commit any crime”) or Cal. Penal Code § 186.22 (which criminalizes active gang participation) forbidding the crime of conspiracy to actively participate in a gang. This conclusion was deemed consistent with the underlying purpose of Cal. Penal Code § 186.22(a), which is part of the California Street Terrorism Enforcement and Prevention Act (STEP Act). The Act’s express purpose is "to seek the eradication of criminal activity by street gangs."

Accordingly, the Court of Appeal made an error when it ruled that conspiracy to commit gang participation was not a valid crime, based on its interpretation of Cal. Penal Code § 182.5. Instead, Penal Code § 182.5 merely creates “a new basis for conspiracy liability” and offers prosecutors “additional flexibility” to charge different kinds of gang-related conspiracy than in Penal Code § 182.

Finally, the Court disagreed with defendants that the Wharton Rule was applicable to their case, and precluded recognizing conspiracy to commit gang participation as a valid crime. It highlighted that the “Rule is essentially an aid to the determination of legislative intent [and] must defer to a discernible legislative judgment.” (Iannelli, 420 U.S. at p. 786, 95 S.Ct. 1284.) It also distinguished classic Wharton’s Rule offenses (adultery, incest, bigamy, dueling) from active gang participation, which involves committing felonies against others, a “network of participants with different roles and varying kinds of involvement[,]” and circumstances which make criminal agreements easier and more likely.

Thus, “[a] conspiracy to commit the gang participation offense may be committed, as here, by already-active gang participants.” Because the defendants were found to have satisfied all the elements of the active gang participation offense, once they agreed to commit a specific crime (the shootings) and an overt act toward the crime was performed, they were liable for conspiracy to commit that crime, as well as conspiracy to commit gang participation.

Media:

None available as of 5/29/2014

Selected Key Cases:

Iannelli v. U.S., 420 U.S. 770 (1975)
People v. Albillar, 51 Cal.4th 47 (2010)
People v. Iniguez, 116 Cal. Rptr. 2d 634 (2002)
People v. Morante, 20 Cal.4th 403 (1999)
People v. Rodriguez, 55 Cal.4th 1125 (2012)
People v. Russo, 25 Cal.4th 1124 (2001)
People v. Gardeley, 14 Cal. 4th 605 (1996)
People v. Zamora, 18 Cal.3d 538 (1976)

Key Statutes:

Cal. Penal Code § 182
Cal. Penal Code § 182.5
Cal. Penal Code § 186.21
Cal. Penal Code § 186.22(a)

Tags:

Active Gang Participation, Appellate Review, Attempt, Bloods, Cal. Penal Code § 182, Cal. Penal Code § 182.5, Cal. Penal Code § 186.22(a), California Street Terrorism Enforcement and Prevention Act, Conspiracy, Conspiracy Liability, Country Boy Crips, Criminal Law, Error, Gangs, Gang Participation Offense, Gang-Related Activities, Gang Sentencing Enhancement, Inchoate Offense, Judicial Review, Legislative Intent, Murder, Proposition 21, Statutory Interpretation, STEP Act, Wharton Rule.

Hamida Owusu