California Penal Code Section 186.22

In People v. Albillar (2010) 51 Cal.4th 47, the California Supreme Court addressed the issue of whether section 186.22, subdivision (a), "includes an implied requirement that the felonious criminal conduct be gang related." (Id. at p. 54.) The court opined section 186.22, subdivision (a), was not ambiguous and opined "the plain language of the statute . . . targets felonious criminal conduct, not felonious gang-related conduct." (Id. at p. 55.) After reciting section 186.22, subdivision (a)'s statutory elements, the court reasoned, "All three elements can be satisfied without proof the felonious criminal conduct promoted, furthered, or assisted was gang related." (Id. at p. 56.) The court stated that had the Legislature intended to include a limiting requirement in section 186.22, subdivision (a), it could have done so as it had in section 186.22, subdivision (b), "which provides for an enhanced sentence 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 . . . .'" (Ibid.) The court noted the Legislature included a requirement the felonious conduct be gang related in the original 1987 bill but that requirement was eliminated in subsequent bills, which is "'significant indicia of legislative intent.'" Finally, the court rejected defendant's argument the federal constitution requires the felonious conduct be gang related because section 186.22, subdivision (a)'s statutory elements "exceed the due process requirement of personal guilt" articulated in Scales v. United States (1961) 367 U.S. 203. (Albillar, supra, 51 Cal.4th at p. 58.) In sum, in Albillar, three Southside Chiques gang members, who had family ties, argued that their rape of an acquaintance in concert failed to satisfy the first prong of section 186.22, subdivision (b)(1). (Id. at p. 62) The court reasoned that since gang members frequently have relatives who also are gang members, "to presume, as defendants urge, that family ties necessarily predominate over gang affiliation when gang members who are related commit crimes together would substantially eviscerate the gang enhancement." (Ibid.) When presented with competing inferences, the jury was entitled to conclude that the rape was "gang related, not family related." (Ibid.) The Albillar court noted that '"it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang."' (Albillar, supra, 51 Cal.4th at p. 62, quoting People v. Morales (2003) 112 Cal.App.4th 1176, 1198 (Morales).)