People v. Clark

318 Cal.Rptr.3d 152

542 P.3d 1085

The PEOPLE, Plaintiff and Respondent,

v.Kejuan Darcell CLARK, Defendant and Appellant.

S275746

Supreme Court of California.

February 22, 2024

Fourth Appellate District, Division Two, E075532, Riverside County Superior Court, RIF1503800, Bambi J. Moyer, Judge

Patrick Morgan Ford, under appointment by the Supreme Court, for Defendant and Appellant.

Sylvia Perez MacDonald, Lana M. Kreidie; and William Safford, Palo Alto, 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.

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 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, 296 Cal.Rptr.3d 153 (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 CalA.pp.5th at p. 138, 296 Cal.Rptr.3d 153.) In addition to 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, 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, 296 Cal.Rptr.3d. 153; 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, 296 Cal.Rptr.3d 153.) 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, 296 Cal.Rptr.3d 153.

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, 296 Cal.Rptr.3d 153.) Here, the evidence was sufficient 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, 290 Cal.Rptr.3d 189, 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, 288 Cal.Rptr.3d 463, 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, 297 Cal.Rptr.3d 344, 515 P.3d 77.) 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 persons that...