On Monday in People v. Anguiano the Fourth District Court of Appeal tightened the definition of what conduct qualifies as “street terrorism” under P.C. 186.22–and not before time.
Under the “California Street Terrorism Enforcement and Prevention Act” of 1988 (Codified at P.C. 186.21-186.33), anyone 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” can look forward to a consecutive sentence of between two and ten years added on to whatever sentence they receive for the underlying felony.
In California (and in Nevada, which has a similar statute) the Legislature was clear that they intended this enhancement to apply to specific factual situations where there was a close casual connection between the crime and the gang. In practice, unfortunately, most prosecutors in both states have taken the position that any criminal act committed by a gang member is, almost by definition, for the “benefit” of the gang and deserving of the enhancement.
Which brings us to Mr. Raymond Augiano. According to the Fourth District:
In the late afternoon of January 12, 2005, law enforcement officers were driving to a home in Rancho Cucamonga to perform a parole check on Anguiano’s nephew. The officers were wearing plain clothes and were driving an unmarked vehicle. As the officers neared the nephew’s residence, they saw Anguiano and another man walking toward the residence. Deputy Joe Braattan and Parole Agent Ardrick Elmore recognized Anguiano from previous contacts with him. Anguiano made eye contact with the officers, dropped a bowl of soup that he had been eating, and started running away. Braattan and Elmore jumped out of the vehicle and began to chase Anguiano.’
You might suspect this isn’t going to end well for Mr. Anguiano. You’d be right.
Agent Elmore caught up with Anguiano, drew his gun, and ordered Anguiano to drop to the ground. Anguiano stopped running, but did not comply with the order to get on the ground. Deputy Braattan then used a taser to stun Anguiano and ultimately apprehended him. After officers detained Anguiano, Deputy Braattan retraced the path that Anguiano had taken during the chase. Along the route, Braattan found a semiautomatic handgun, a loaded ammunition clip with one expended round, and a cigarette lighter. Braattan did not see any dirt, moisture or other debris on any of these items.
About four weeks later, a similar set of events took place.
On the morning of February 1, 2005, several law enforcement officers drove to the same residence in Rancho Cucamonga in order to perform a parole check on another of Anguiano’s nephews. After parking their vehicle nearby, the officers started to walk toward the house and saw Anguiano sitting on the front porch, looking down at something in his hands. When Anguiano looked up and saw the approaching officers, he jumped up and ran into the residence.
Several officers chased Anguiano through the house and out the back door, into the backyard. Anguiano threw a cell phone and some plastic bags over a fence. Deputies apprehended Anguiano near a garage in back of the house.
In his pockets, Anguiano had a syringe, a spoon with a cotton ball stuck to it, and a bag of marijuana. Anguiano also had two marks on his forearm that appeared to be fresh needle injection sites that were bleeding. Deputy Paul Gallant recovered the cell phone and bags that Anguiano had tossed over the fence. The bags contained usable amounts of methamphetamine, heroin, and marijuana.
Thus, the only question before the Court was “whether a defendant can be convicted of street terrorism under section 186.22, subdivision (a) where the evidence shows only that the defendant, a gang member, was the sole perpetrator of a felony (i.e., possession of personal use quantities of methamphetamine and heroin), that is concededly not gang related. “ Writing for the Court, Associate Justice Cynthia Aaron held that “the reach of the statute is not so broad as to criminalize such conduct.”. Indeed, she found:
We conclude that in enacting section 186.22, subdivision (a), the Legislature did not intend to make it an additional, separate crime for a defendant to engage in felonious conduct—conduct that is already criminalized and punishable—simply because the defendant is a gang member where the conduct at issue is neither gang related nor committed in concert with other gang members.
To put it another way:
To read the statute as permitting Anguiano to be convicted of street terrorism for sitting alone on a porch in possession of personal use quantities of drugs simply because he is a member of a gang is not, in our view, a reasonable interpretation, and finds no support in current case law. The statute was not intended to make it a crime for a defendant to associate with a gang, but rather, to criminalize active participation in a gang, with knowledge of the gang’s criminal purpose, and promoting, furthering or assisting felonious conduct by members of that gang.
Accordingly, the Anguiano Court reversed and remanded his street terrorism conviction and sent the matter back to the Superior Court for resentencing.
Of course, like most subjects in California jurisprudence, this doesn’t fully resolve the controversy, since the California Supreme Court just heard oral argument on a case with the same issue in People v Joe Rodriguez Jr., on October 2, 2012. Accordingly, we should have the last word on the matter by January 2013 (since the Supreme Court has 90 days to issue an opinion following oral argument). Here’s hoping the Court reviews what Justice Aaron had to say in this case before it renders its opinion.