Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR545515
Jones, P.J.
The People appeal contending the trial court erred when it granted a motion under Penal Code section 995 and dismissed a count alleging that defendant Paul Moreno Gutierres promoted, furthered or assisted criminal conduct by gang members. (§ 186.22, subd. (a).) We agree and will reverse the order dismissing the count.
All further statutory references are to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
Jessica Calderon lived at 18261 Lucas Avenue in Boyes Hot Springs. On September 13, 2008, defendant and several others, some of whom were members of the Sureño street gang, were attending a party in the front yard of the Calderon residence.
Daniel Chavarria lived across the street from Calderon at 18306 Lucas Avenue. Chavarria was a member of the Norteño street gang and around 1:00 a.m. on the date in question, he and several others, including Juan McGroarty who also was a member of the Norteño gang, returned to Chavarria’s residence.
The two groups began exchanging insults and a fight broke out between them. During the fight, defendant hit Juan McGroarty in the head with a garden hoe.
Based on these facts an information was filed charging defendant with four counts. Only one of them is relevant here. The fourth count alleged defendant promoted, furthered and assisted the members of a criminal street gang within the meaning of section 186.22, subdivision (a).
The case was tried to jurors who were unable to reach a verdict on any of the counts or supporting allegations. The trial court declared a mistrial and the case was set for retrial.
On August 31, 2010, an amended information was filed alleging the same four counts plus a new fifth count, aggravated mayhem in violation of section 205.
On September 7, 2010, defendant filed a motion under section 995 to dismiss the aggravated mayhem count (count V) on the grounds of vindictive prosecution. Then on October 1, 2010, defendant expanded his motion arguing the fourth count must also be dismissed under the authority of People v. Rodriguez (2010) 188 Cal.App.4th 722, review granted January 12, 2011, S187680, a case that had been decided about 10 days earlier. The trial court granted the motion to dismiss the aggravated mayhem count. Then after further briefing, the court also granted the motion to dismiss count IV explaining its decision as follows:
“The cases that are coming down, People[v.] Rodriguez... a person cannot further, promote or assist in their own felony conduct. I don’t know... how else to read that when we look at this case.... It is a gang fight, all aiding and abetting each other. That is an argument that flew up until Rodriguez. If I am wrong, I will be told I am wrong. Right now Rodriguez to me changes it... because here we’ve got one person on one person; that’s it.”
The People then filed the present appeal challenging the court’s decision to dismiss count IV. On November 19, 2010, we temporarily stayed trial of the action pending our resolution of this appeal.
II. DISCUSSION
The People contend the trial court erred when it dismissed count IV alleging defendant had violated section 186.22, subdivision (a). As is relevant here, section 186.22 states: “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison....” (Italics added.)
The parties to this appeal agree that the pivotal issue is whether the perpetrator of a crime can be found guilty of violating section 186.22. According to defendant “[b]ecause [he] is charged as the sole perpetrator of the assault that did not involve felonious conduct by other persons, let alone members of the gang in which he was alleged to be an active participant, there is insufficient evidence.... to support a violation of section 186.22, subdivision (a).”
Defendant’s argument on this point has been rejected by a long line of authority. The issue first arose more than a decade ago in People v. Ngoun (2001) 88 Cal.App.4th 432, 434, where the defendant argued he could not be found guilty of violating section 186.22, subdivision (a) because there was no evidence that he aided or abetted a felonious act committed by some other gang member. The Ngoun court rejected the argument as follows: “Given the objective and intent of subdivision (a), we find good reasons not to construe section 186.22, subdivision (a), in the restricted manner advocated by appellant and instead to conclude that this subdivision applies to the perpetrator of felonious gang-related criminal conduct as well as to the aider and abettor. Courts should give statutory words their plain or literal meaning unless that meaning is inconsistent with the legislative intent apparent in the statute. [Citations.] Under the language of subdivision (a), liability attaches to a gang member who ‘willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.’ (§ 186.22, subd. (a).) In common usage, ‘promote’ means to contribute to the progress or growth of; ‘further’ means to help the progress of; and ‘assist’ means to give aid or support. [Citation.] The literal meanings of these critical words squares with the expressed purposes of the lawmakers. An active gang member who directly perpetrates a gang-related offense ‘contributes’ to the accomplishment of the offense no less than does an active gang member who aids and abets or who is otherwise connected to such conduct. Faced with the words the legislators chose, we cannot rationally ascribe to them the intention to deter criminal gang activity by the palpably irrational means of excluding the more culpable and including the less culpable participant in such activity.” (People v. Ngoun, supra, 88 Cal.App.4th at p. 436.)
The court in People v. Salcido (2007) 149 Cal.App.4th 356, 363-368, agreed with Ngoun and ruled that a defendant can be convicted of violating section 186.22, subdivision (a) either by directly and actively committing a felony offense or by aiding and abetting an offense committed by another gang member.
The court in People v. Sanchez (2009) 179 Cal.App.4th 1297, 1307-1308, agreed with Ngoun and Salcido and ruled that a defendant can be convicted of violating section 186.22, subdivision (a) based on his acts as the direct perpetrator of an offense.
This consistent string of authority was broken briefly in People v. Rodriguez, supra, 188 Cal.App.4th 722, the case upon which the trial court relied. There, a divided panel of the Third District ruled that the direct perpetrator of an offense can be found to have violated section 186.22, subdivision (a) only if some other gang member had also participated in the felonious conduct. However, our Supreme Court promptly granted review in Rodriguez and thus depublished the opinion in that case. (See Cal. Rules of Court, rule 8.1105(e)(1).)
Thus, we are faced with a situation where every published and citable case agrees that a defendant can be convicted of violating section 186.22, subdivision (a) based on his own conduct of committing an offense. We agree with those prior decisions. The trial court here erred when it granted defendant’s motion and dismissed count IV.
Defendant concedes that he cannot prevail if this court follows Ngoun, Salcido and Sanchez. But he urges us not to follow those decisions arguing they are inconsistent with language in People v. Castenada (2000) 23 Cal.4th 743, 749, where our Supreme Court stated: “[S]ection 186.22(a) limits liability to those who promote, further, or assist a specific felony committed by gang members and who know of the gang’s pattern of criminal gang activity. Thus, a person who violates section 186.22(a) has also aided and abetted a separate felony offense committed by gang members....” (Italics added.) Focusing on the language we have italicized, defendant suggests that a violation of section 186.22, subdivision (a) can only occur when one promotes, furthers, or assists another gang member. Defendant reads this language out of context. The quote comes from a portion of the Castaneda decision where the court ruled that section 186.22, subdivision (a) does not punish mere association with a disfavored organization and therefore satisfies the due process requirement of personal guilt. (People v. Castenada, supra, 23 Cal.4that p. 749.) The court was not asked to decide and did not decide whether a defendant can be found guilty of violating section 186.22, subdivision (a) based on his own conduct. Language in an opinion is not authority for propositions that are not considered. (People v. Jennings (2010) 50 Cal.4th 616, 684.)
Defendant also relies on language from People v. Albillar (2010) 51 Cal.4th 47, 56, where our high court described one of the elements of a section 186.22 subdivision (a) offense as being “the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of [a] gang. [Citation.]” (Italics added.) Again, appellant has read this language out-of context. The issue in Albillar was whether the phrase “any felonious criminal conduct” in section 186.22, subdivision (a) refers only to gang-related conduct. The Albillar court rejected that interpretation of the statute. (People v.Albillar, supra, 51 Cal.4that p. 59.) Because the quote from Alibllar upon which defendant relies arose in a different context, it is not controlling here. (People v. Jennings, supra, 50 Cal.4th at p. 684.)
We conclude the trial court erred when it granted defendant’s motion and dismissed count IV alleging a violation of section 186.22, subdivision (a).
Having reached this conclusion, we need not decide whether defendant timely filed his section 995 motion.
III. DISPOSITION
The order dismissing count IV is reversed.
This court’s order of November 19, 2010, which temporarily stayed trial of the additional charges pending against defendant, is hereby modified to state that the previously issued stay will dissolve upon the finality of this opinion as to this court. (Cal. Rules of Court, rule 8.366(b)(1).)
We concur: Simons, J., Bruiniers, J.