For those criminal defense attorneys who practice serious and violent felony defense, Santa Claus (acting in the form of the California Supreme Court) brought a major Christmas present over the holiday season. On December 27th while everyone was checked out of the office and still recovering from Christmas turkey overload, the Cal Sup’s handed down the long awaited decision of People v. Rodriguez (cite still pending -S187680) which settled a critical issue in California gang cases: Can a gang member, when committing a felony but acting alone, be convicted of the substantive gang charge, PC 186.22(a) – Active Participation in a Criminal Street gang. The Supremes, much to my (and many of my clients’) delight, made it finally crystal clear: NO.
To give a history of the case, in September of 2010, the Rodriguez case first came out of the Third Appellate District of the California Court of Appeals, who surprised just about everyone when they came to obvious conclusion that the phrase “by members of that gang" meant that you needed more than one gang member present during the instant crime to be convicted of PC 186.22(a). Just one month later, the Fourth Appellate District handed down the case of People v. Cabrera, which came to the opposite conclusion, despite all common sense and understanding surrounding the plural meaning of “members." Almost immediately, the California Supreme Court granted review, and both cases have been un-citeable since.
The California Supreme Court have now made clear in their opinion that the issue is now resolved: “Although the People might prefer a different statute, section 186.22(a) reflects the Legislature's carefully structured endeavor to punish active participants for commission of criminal acts done collectively with gang members. Defendant here acted alone in committing the attempted robbery. Thus, he did not also violatesection 186.22(a)."
Music to my ears. This eliminates a pending strike (186.22(a) is a strike itself), as well as possible 667(a) priors that may be attached because of the gang charge for many defendants who are otherwise charged with simple felonies. As a Deputy District Attorney handling gang cases mentioned to me, “Rodriguez is going to impact about half of my entire case-load."
Of course, there seems to always be a bit of a asterisk next to each case that helps the defense in gang cases. In Rodriguez, defense professionals should be wary of another point set forth in plain language by the Court. While in the past, prosecutors have steered clear of filing PC 186.22(a) counts against any individuals who were not validated members of a criminal street gang. Unfortunately, the California Supremes gave prosecutors a new out: “A person who is not a member of a gang, but who actively participates in the gang, can be guilty of violatingsection 186.22(a)." This should give pause to defense attorneys who commonly handle gang cases. Can hang-arounds, wanna-bes, even friends who may not “claim" but actively hang out with and help gang members qualify now? The answer is not clear.
For now, criminal defense attorneys handling gang cases should enjoy the moment, and become well versed in the language of People v. Rodriguez. It should serve to be an extremely useful tool to help combat the excessive use of PC 186.22(a) against our clients.