People v. JohnsonPeople v. Johnson
CORRIGAN, J.—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.
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.
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
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
Criminal activity exists along a continuum. At its conclusion is the commission of a completed crime, like murder. The principle of attempt
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 [43 L.Ed.2d 616, 95 S.Ct. 1284] (Iannelli); see Homick, supra, 55 Cal.4th at p. 870; People v. Marsh (1962) 58 Cal.2d 732, 743 [26 Cal.Rptr. 300, 376 P.2d 300].) 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 [49 Cal.Rptr.2d 390, 909 P.2d 994].) “Traditionally the law
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 ....” (
B. Conspiracy to Commit Active Gang Participation a Valid Offense
“The elements of the gang participation offense in
The Attorney General argues conspiracy to commit active gang participation comes within the plain language of
Nothing in the plain language of either
Concluding that one can conspire to actively participate in a gang is fully consistent with the underlying purposes of
The Court of Appeal found a contrary intent expressed in
Second, a traditional conspiracy encompasses an agreement to commit “any crime.” (
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
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,
The creation of a new basis for conspiracy liability under
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 neither. The Attorney General points to analogous federal statutes, such as the Racketeer Influenced and Corrupt Organizations Act (RICO) (
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
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 [49 Cal.Rptr.3d 765], 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 [116 Cal.Rptr.2d 634] 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
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
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 the federal gambling statute at issue there: “The conduct proscribed by [
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
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 [87 L.Ed. 23, 63 S.Ct. 99].) “[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 [102 L.Ed.2d 927, 109 S.Ct. 757].) “‘One agreement gives rise to only a single offense, despite any multiplicity of objects.‘” (People v. Lopez (1994) 21 Cal.App.4th 1551, 1557 [26 Cal.Rptr.2d 741].)
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 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
III. DISPOSITION
We reverse the Court of Appeal‘s judgment and remand for further proceedings consistent with this opinion.
Cantil-Sakauye, C. J., Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Liu, J., concurred.