People v. Lopez ( 2022 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
PEDRO LOPEZ,
Defendant and Appellant.
S261747
Fifth Appellate District
F076295
Tulare County Superior Court
VCF325028TT
April 7, 2022
Justice Kruger authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,
Groban, Jenkins, and Miller* concurred.
* Associate Justice of the Court of Appeal, First Appellate
District, Division Two, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
PEOPLE v. LOPEZ
S261747
Opinion of the Court by Kruger, J.
Defendant Pedro Lopez was convicted of conspiracy to
commit home invasion robbery in violation of Penal Code section
182, the general conspiracy statute. The question in this case
concerns the appropriate sentence for the crime. Section 182
provides that if two or more persons conspire to commit a felony,
“they shall be punishable in the same manner and to the same
extent as is provided for the punishment of that felony.” (Pen.
Code, § 182, subd. (a).) This means that a person convicted of
conspiring to commit home invasion robbery ordinarily faces
three, six, or nine years in prison, just as if that person had been
found guilty of a completed home invasion robbery. (Id., § 213,
subd. (a)(1)(A).) But the trial court in this case instead
sentenced Lopez to an indeterminate term of 15 years to life
under Penal Code section 186.22, subdivision (b)(4) (section
186.22(b)(4)). That provision prescribes indeterminate life
terms for specified felonies, including “home invasion robbery,
in violation of subparagraph (A) of paragraph (1) of subdivision
(a) of Section 213” (§ 186.22(b)(4)(B)), when those felonies are
found to be gang-related.
We granted review to consider whether Lopez was
properly sentenced to an indeterminate life term under section
186.22(b)(4), even though Lopez was convicted of the crime of
conspiracy and not completed home invasion robbery. The
Court of Appeal answered yes. It understood the conspiracy
statute and this court’s decision in People v. Athar (2005) 36
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Opinion of the Court by Kruger, J.
Cal.4th 396 (Athar) to instruct that in a felony conspiracy case,
a trial court ordinarily must apply all sentence enhancements
or alternate penalties that would have applied to the completed
offense. Because section 186.22(b)(4) does not contain an
express statement forbidding an indeterminate life term for a
conspiracy conviction, the Court of Appeal concluded Lopez’s life
sentence was proper.
We reach a different conclusion. Neither the conspiracy
statute nor decision in Athar requires an express statement
forbidding imposition of sentence enhancements, alternate
penalties, or other additional punishment to conspiracy
convictions. It is enough if the relevant statutes reflect a
discernable intent to reserve the additional punishment for
completed crimes. Here, although section 186.22(b)(4) does not
say so expressly, the most natural reading of the provision
reflects such an intent. Because Lopez was convicted of
conspiracy to commit home invasion robbery and not the
completed crime, we reverse the judgment of the Court of Appeal
and remand Lopez’s case for resentencing.
I.
In 2015, law enforcement agencies investigated the
activities of Norteño criminal street gang members in Tulare
County. As part of the investigation, authorities conducted live
surveillance of certain high-ranking gang members and tapped
their telephones. On August 24 and 25, agents were watching
and listening as several of these gang members planned two
back-to-back home invasion robberies to take place in Visalia.
Lopez, a member of a Norteño subset in Fresno County, agreed
by phone and text message to help recruit for and participate in
these robberies.
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Opinion of the Court by Kruger, J.
In preparation, Lopez and other gang members procured
cars, weapons, and other equipment; scoped out the locations
they intended to target; and planned a coordinated attack. On
the night of August 25, the group divided into two cars and set
out toward the targeted homes. One gang leader texted another,
“ ‘ “We in motion. I’ll update you soon.” ’ ” Moments later, the
police intervened. Police arrested five individuals, including
Lopez.
A jury found Lopez guilty of two counts of conspiracy to
commit home invasion robbery1 (Pen. Code, §§ 182, subd. (a)(1)
[traditional conspiracy], 211 [robbery], 213, subd. (a)(1)(A)
[punishment for home invasion robbery]), criminal street gang
conspiracy to commit home invasion robbery (id., § 182.5
[criminal street gang conspiracy]), and attempted home
invasion robbery (id., §§ 664 [attempt], 211, 213, subd.
(a)(1)(A)). The jury also found all of these crimes to be gang-
related within the meaning of Penal Code section 186.22,
subdivision (b)(1) and section 186.22(b)(4).2 The court sentenced
1
The term “home invasion robbery” is a commonly used
shorthand for a first degree robbery offense in which the
defendant, “voluntarily acting in concert with two or more other
persons, commits the robbery within an inhabited dwelling house”
or other habitation. (Pen. Code, § 213, subd. (a)(1)(A); see
§ 186.22(b)(4)(B).) Though the crime is perhaps more accurately
described as “robbery in concert in a home” (People v. Jones (2012)
54 Cal.4th 350, 367 (conc. opn. of Werdegar, J.)), we use the more
common shorthand, as it is the term used in section
186.22(b)(4)(B), the sentencing provision at issue in this case.
2
We are likewise using “gang-related” as a shorthand for the
showing required by statute: namely, that the defendant has
committed the current felony “for the benefit of, at the direction of,
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Opinion of the Court by Kruger, J.
Lopez to an indeterminate term of 35 years to life for conspiracy
to commit home invasion robbery, consecutive to a determinate
term of 19 years for attempted home invasion robbery. The
sentence for the conspiracy conviction consisted of 15 years to
life as a so-called alternate penalty under section
186.22(b)(4)(B), doubled for a prior strike, with an additional
five years for a prior serious felony conviction under Penal Code
section 667, subdivision (a). All other counts and enhancements
were stayed or ordered to be served concurrently.
Lopez appealed. The appeal was partially successful: The
Court of Appeal reversed the second count of conspiracy for
insufficient evidence. But Lopez was unsuccessful in his efforts
to persuade the Court of Appeal that the trial court erred in
sentencing him to an indeterminate life term on his conspiracy
conviction under section 186.22(b)(4). The Court of Appeal
agreed with Lopez that the language in that provision
unambiguously applies to only the enumerated offenses, which
do not include conspiracy. But it understood this court’s
decision in Athar, supra, 36 Cal.4th 396 to mean it must
“presume any intent to exclude conspiracy liability from the
purview of section 186.22, subdivision (b)(4)(B) would be
expressly stated therein, which it is not.” (People v. Lopez (2020)
46 Cal.App.5th 505, 529.) The court thus upheld Lopez’s
indeterminate life term on the conspiracy count.
We granted review.
or in association with a criminal street gang.” (Pen. Code,
§ 186.22, subd. (b)(1).)
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Opinion of the Court by Kruger, J.
II.
The crime of conspiracy “ ‘is an inchoate offense, the
essence of which is an agreement to commit an unlawful act.’ ”
(People v. Johnson (2013) 57 Cal.4th 250, 258 (Johnson).) Much
as with other inchoate offenses, the law imposes liability even
when agreement never comes to fruition and the agreed-to
unlawful act never occurs. To complete the crime of conspiracy,
one of the conspirators must commit an overt act in furtherance
of the agreement. But because “ ‘it is the agreement, not the
overt act, which is punishable[,] . . . the overt act need not
amount to a criminal attempt and it need not be criminal in
itself.’ ” (Id. at p. 259.)
When California’s general conspiracy statute was enacted
in 1872, conspiracy was a misdemeanor punishable by
imprisonment in the county jail not exceeding one year, or by a
fine not exceeding $1,000, or both. (1872 Pen. Code, § 182.) In
1919, the Legislature amended the statute to provide that, if two
or more persons conspire to commit a felony, “they shall be
punishable in the same manner and to the same extent as in
this code provided for the punishment of the commission of the
said felony . . . .” (Pen. Code, former § 182, as amended by Stats.
1919, ch. 125, § 1, p. 171.) This sanctions clause remains largely
unchanged today. (Pen. Code, § 182, subd. (a) [“punishable in
the same manner and to the same extent as is provided for the
punishment of that felony”].)3
3
This language applies to conspiracy to commit any felony,
other than crimes against certain high-ranking officials (see
§ 182(a)(6)), which are instead punishable by imprisonment for
five, seven, or nine years.
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Opinion of the Court by Kruger, J.
At the time the Legislature enacted the language, its
application was relatively straightforward. But over the course
of the following century, the Legislature and voters enacted a
number of sentence enhancements and alternative sentencing
schemes that have raised new questions about the operation of
the general instructions in section 182 for the punishment of
conspiracy.
All parties before us agree that under Penal Code section
182, subdivision (a) (section 182(a)), a person who conspires to
commit a felony is ordinarily subject to the same base term of
imprisonment as a person who completes that target offense.
Here, for example, the parties agree that, absent the gang
enhancement, Lopez would be subject to imprisonment for a
term of three, six, or nine years for his conspiracy conviction —
the same term of imprisonment prescribed for home invasion
robbery. (Pen. Code, § 213, subd. (a)(1)(A).)
The question in this case concerns the punishment for
conspiracy to commit offenses that, if completed, would be
subject to additional or more severe punishment based on
additional findings concerning the manner or circumstances in
which the crime is committed. Such punishment may be
provided in provisions creating sentence enhancements or, as
relevant here, alternate penalties. For simplicity’s sake, we
have sometimes referred to these types of statutes as “special
penal provision[s].”4 (Athar, supra, 36 Cal.4th at p. 402.) The
4
As we have previously explained, a sentence enhancement
adds “ ‘an additional term of imprisonment to the base term,’ ”
while an alternate penalty like section 186.22(b)(4) “ ‘provides for
an alternate sentence when it is proven that the underlying offense
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question is, in short, “to what extent a court can attach a special
penal provision” like section 186.22(b)(4) “to conspiracy rather
than to the underlying crime itself.” (Athar, at p. 402.)
We have seen similar questions before. Because our
precedent is central to the parties’ dispute here, we describe the
opinions in some depth.
In People v. Hernandez (2003) 30 Cal.4th 835 (Hernandez),
we considered the prescribed punishment for the crime of
conspiracy to commit murder. The defendant in that case had
been convicted of both murder and conspiracy to commit
murder, and the jury had found true a special circumstance
allegation that both the murder and conspiracy to commit
murder had been committed for financial gain. (Id. at p. 864.)5
Based on that true finding, the defendant was sentenced to life
without possibility of parole on the conspiracy conviction. We
vacated the sentence, concluding that the special penal
provision at issue — the special circumstance authorizing the
life without parole sentence — applied only to convictions for the
completed crime, not to convictions for conspiracy to commit
murder. (Hernandez, at p. 878.)
We began our inquiry by laying out the relevant statutory
background. In addition to the basic sentencing directive that
has been committed for the benefit of, or in association with, a
criminal street gang.’ ” (People v. Jones (2009) 47 Cal.4th 566,
576.) Both types of provisions differ from substantive offenses in
that they do not “ ‘define or set forth elements of a new crime.’ ”
(Ibid.)
5
In a separate part of the opinion, we vacated the defendant’s
death sentence on the murder count because of significant errors
at the penalty phase of the trial.
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Opinion of the Court by Kruger, J.
conspiracy shall be punished in the same manner and to the
same extent as the target felony, the conspiracy statute specifies
that when two or more persons conspire to commit murder, “the
punishment shall be that prescribed for murder in the first
degree.” (§ 182(a).) Penal Code section 190, subdivision (a),
enacted as part of the 1978 death penalty initiative (Prop. 7, as
approved by voters, Gen. Elec. (Nov. 7, 1978)), outlined three
possible punishments for first degree murder: death, life in
prison without parole, or 25 years to life in prison. The two most
severe punishments — death or life without parole — could be
imposed only if one or more special circumstances had been
found true, including the financial gain special circumstance in
Penal Code section 190.2. We concluded that these punishments
could not be applied to a conviction of conspiracy to commit
murder, as opposed to the completed crime, notwithstanding the
presence of special circumstances.
The question, as we described it, was “[w]hether the
special circumstances in [Penal Code] section 190.2 apply to the
crime of conspiracy to murder,” which depended on the
legislative intent underlying the 1978 ballot initiative.
(Hernandez, supra, 30 Cal.4th at p. 865.) Looking first to the
text, we found nothing to suggest that voters intended for the
death-qualifying special circumstances to apply to the crime of
conspiracy to commit murder, or, for that matter, to any other
crime other than murder itself. (Id. at pp. 866–867.) On the
contrary, we noted, “[S]ubdivision (a) of [Penal Code] section
190.1 states: ‘If the trier of fact finds the defendant guilty of first
degree murder, it shall at the same time determine the truth of
all special circumstances charged,’ ” which strongly implied that
the “special circumstances may be charged and found true only
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Opinion of the Court by Kruger, J.
as to the crime of murder.” (Hernandez, at p. 866.) We similarly
found nothing in the ballot materials to suggest voters intended
the special circumstances and their attendant penalties of death
or life without possibility of parole to apply to conspiracy to
commit murder, as opposed to the completed crime. (Ibid.)
We found further support for our conclusion in the canon
of constitutional avoidance. In 1978, we explained, it was
unclear whether the federal Constitution permitted imposing
the death penalty for crimes that did not take human life. (See
Coker v. Georgia (1977) 433 U.S. 584 [invalidating death
sentence for rape of an adult victim]; Eberheart v. Georgia (1977)
433 U.S. 917 [invalidating death sentence for aggravated
kidnapping].) We presumed that the electorate intended to
avoid significant questions about the constitutionality of the
new California death penalty law by restricting capital
punishment to the completed crime of first degree murder,
rather than authorizing the death penalty for failed conspiracies
that did not result in the taking of life. (Hernandez, supra, 30
Cal.4th at p. 867.)
We next considered the practical implications of
interpreting the special circumstances statute to apply to
conspiracy. We explained that at the time the voters enacted
the 1978 death penalty initiative, the penalty for most forms of
attempted willful and premeditated murder was five, six, or
seven years (although a legislative amendment increasing the
punishment to five, seven, or nine years was set to go into effect
on Jan. 1, 1979). (Hernandez, supra, 30 Cal.4th at pp. 867–868,
citing Pen. Code, former § 664, subd. (1), as amended by Stats.
1978, ch. 579, § 27, p. 1986; Stats. 1978, ch. 1166, § 2, p. 3771.)
We acknowledged that conspiracy is generally punished more
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severely than attempt: while conspiracy is punishable to the
same extent as the completed crime (§ 182(a)), attempt is
generally punishable for one-half the term of the imprisonment
prescribed for the completed crime (Pen. Code, § 664, subd. (a)).
But we considered it “unlikely the voters intended to allow the
death penalty for a conspiracy to murder, which requires only a
conspirator’s overt act in furtherance of the murderous plot
([id., ]§ 184), at a time when the maximum punishment for
attempted willful and premeditated murder, which requires a
direct, though ineffectual, premeditated murderous act
([id., ]§ 21a), was five, seven, or nine years in prison.”
(Hernandez, at p. 868.) This large discrepancy between the
punishment for conspiracy and attempt supported our
conclusion that the special circumstances in Penal Code section
190.2 do not apply to conspiracy to commit murder. (Hernandez,
at p. 868.)
Finally, our opinion in Hernandez alluded to the rule of
lenity. That rule, we explained, states “that when ‘two
reasonable interpretations of the same provision stand in
relative equipoise, i.e., . . . resolution of the statute’s ambiguities
in a convincing manner is impracticable,’ we construe the
provision most favorably to the defendant.” (Hernandez, supra,30 Cal.4th at p. 869.) We found that the 1978 death penalty law
“is most plausibly construed as not authorizing the charging of
special circumstances for the crime of conspiracy to commit
murder,” such that there was no need to rely on the rule of
lenity. (Ibid.) But we went on to note that “even if such a
construction were no more plausible than the alternative, the
rule of lenity would add decisive weight in favor of that
construction.” (Id. at pp. 869–870.)
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We returned to the issue of conspiracy sentencing two
years later in Athar, supra, 36 Cal.4th 396. In Athar, a jury
convicted the defendant under section 182(a) of conspiring to
conduct money laundering transactions, in violation of Penal
Code section 186.10, subdivision (a). Defendants’ coconspirators
were convicted of violating section 186.10, subdivision (a), based
on completed transactions. The jury determined the value of the
transactions was in excess of $2.5 million, which carried a four-
year enhancement. (Pen. Code, § 186.10, subd. (c)(1)(D).) The
defendant argued that the four-year enhancement should apply
only to convictions for the completed money laundering offense,
not to his conspiracy conviction. We disagreed.
As an initial matter, we explained that section 182(a), by
its terms, is naturally read to incorporate sentence
enhancements as well as the base term for the target offense.
(Athar, supra, 36 Cal.4th at pp. 401–402; see id. at pp. 404–405.)
But the inquiry did not end there; we acknowledged that our
decision in Hernandez had not considered the matter resolved
by section 182(a) standing alone, but instead looked to the
statute governing special circumstances and ultimately
concluded that statute was not meant to apply to conspiracy
convictions.
Our opinion in Athar distinguished the money laundering
statute from the statute in Hernandez, explaining that the
available interpretive tools pointed in the opposite direction
from that case. Among other things, we explained that the
purpose of the amendment adding the enhancements was to
more effectively deter and punish money laundering. “Because
the money laundering process typically involves more than one
person, and often large criminal networks, it is reasonable for
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us to find that the enhancements . . . were intended to control
large-scale laundering and the conspiracies that necessarily
underlie the criminal operation.” (Athar, supra, 36 Cal.4th at
p. 404.) We also distinguished the money laundering statute
from Health and Safety Code section 11370.4, subdivision (a),
which expressly provides for enhancements where a person has
been “ ‘convicted of a violation of, or of a conspiracy to violate,’ ”
certain drug trafficking offenses. (Athar, at p. 405, italics
added.) We explained that the Legislature added the italicized
language in a later amendment, possibly based on the belief that
“it was necessary to amend the statute in order to apply the
statutory enhancements to conspirators because those
enhancements had been limited specifically to persons convicted
of the target offense.” (Ibid.) We declined to place any weight
on the absence of similar language in the money laundering
statute, noting that the enhancement provision does not refer to
individuals “ ‘convicted’ of” that statute, but instead refers to
individuals “ ‘punished under’ ” that statute. (Ibid.)
Finally, we noted that unlike in Hernandez, our
interpretation neither raised significant constitutional concerns
nor resulted in any disparity between the punishment of
conspiracy and attempt; indeed, our interpretation ensured that
these two inchoate offenses would receive the same punishment.
(Athar, supra, 36 Cal.4th at p. 404.)
The parties disagree about the lessons to be learned from
Athar, and Hernandez before it. The Attorney General argues,
and the Court of Appeal agreed, that Athar means that when an
enhancement or alternate penalty would otherwise apply to a
completed target offense, it must be applied to a conspiracy
conviction unless the statute expressly directs otherwise. So
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here, even though the Court of Appeal found that the alternate
penalty in section 186.22(b)(4)(B) unambiguously applied to
completed home invasion robbery and not conspiracy, it
considered it dispositive that section 186.22(b)(4)(B) does not
explicitly exclude conspiracy from its reach. In Lopez’s view,
this argument overreads Athar. But if that is wrong, Lopez
argues, then Athar is wrong, cannot be reconciled with
Hernandez, and should be overruled.
We agree with Lopez that Athar, properly understood,
does not stand for the proposition for which the Attorney
General and Court of Appeal have read it. Athar does make
clear that section 182(a)’s instruction that conspiracy to commit
a felony is “punishable in the same manner and to the same
extent as is provided for the punishment of that felony” means
a conspiracy sentence can encompass not only the base term but
also sentence enhancements. (Athar, supra, 36 Cal.4th at p. 405
[asserting that the meaning of § 182(a) is “plain” in this respect
and “does not require additional legislative clarity”].) But Athar
makes equally clear that the sentencing inquiry does not begin
and end with section 182(a); the terms of the enhancement or
alternate penalty also matter. Hernandez illustrated that point
in giving effect to voters’ apparent intent to reserve the most
serious punishments under the 1978 death penalty initiative for
individuals convicted of completed murder; Athar then
employed the same “statutory construction principles we
addressed in Hernandez” to reach a different conclusion about
Penal Code section 186.10 money laundering enhancements.
(Athar, at p. 404.)
Though the Attorney General suggests otherwise, we did
not change our approach in People v. Ruiz (2018) 4 Cal.5th 110013
PEOPLE v. LOPEZ
Opinion of the Court by Kruger, J.
(Ruiz). In Ruiz we considered whether laboratory and drug
program fees for persons convicted of certain enumerated drug
crimes applied to persons convicted of conspiracy to commit one
of those offenses. Without expressly addressing whether the fee
statutes at issue were properly understood to apply to
conspiracy crimes, we instead focused on whether the fees
constituted “punishment” within the meaning of section 182(a).
Because the fees were meant as punishment, we held that the
fees applied to a person convicted of conspiracy. The Attorney
General reads this as an implicit acknowledgment that section
182(a) alone controls the inquiry, but we acknowledged no such
thing. We focused on section 182(a) because the application of
section 182(a) was the only question put to us; no one disputed
that the fee statutes, properly interpreted, were meant to apply
to persons convicted of conspiracy as well as completed offenses.
The same was not true in Hernandez or Athar, where we
carefully considered the intended reach of the special penal
provisions at issue, and the same is not true here.
An approach that looks beyond the basic instructions in
section 182(a) only makes sense, since the sentence in any given
conspiracy case depends on both section 182(a) and the
sentencing law or laws that specify the punishment for
particular crimes. Nothing in section 182(a) indicates that the
general instructions it contains are designed to override all
other applicable law. (Cf., e.g., In re Greg F. (2012) 55 Cal.4th
393, 406 [“When the Legislature intends for a statute to prevail
over all contrary law, it typically signals this intent by using
phrases like ‘notwithstanding any other law’ or
‘notwithstanding other provisions of law’ ”].) And as Hernandez
demonstrates, the Legislature and voters sometimes write
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enhancement statutes and other penal provisions that are
aimed exclusively at increasing the punishment for completed
offenses. In such cases, the legislative body has determined that
punishment should be added for the manner or circumstances
in which an offense is completed, but that the same punishment
should not be added for the manner or circumstances in which
individuals conspire, but ultimately fail, to commit a particular
target offense. When legislators make such a determination, we
give effect to their choices as providing more specific guidance
than section 182(a) about whether a particular enhancement or
other penal provision should be included as part of the
punishment for the conspiracy offense. (See, e.g., Lopez v. Sony
Electronics, Inc. (2018) 5 Cal.5th 627, 634.)
Indeed, the Attorney General does not seriously dispute
the point that a court must consider the terms of the special
penal provision at issue before deciding whether the provision
applies to a conspiracy conviction. His argument is instead that,
to override the general rule that section 182(a) embraces
enhancements and other similar penalty provisions, the special
penal provision must expressly so provide. We are
unpersuaded.
We acknowledge there is some language in Athar that can
be read to suggest an express statement rule of the kind the
Attorney General advocates. For example, Athar signals
general agreement with a Court of Appeal opinion it describes
as holding that the money laundering enhancement statute
“requires the enhancement because it does not specifically
prohibit it.” (Athar, supra, 36 Cal.4th at p. 401.) But in the end,
neither the substantive analysis in Athar nor our prior decision
in Hernandez supports this sort of rule.
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For one thing, if an express statement were required to
overcome the general rule of section 182(a) with respect to
enhancements and alternate penalties, then Hernandez
presumably would have come out differently. After all, nothing
in the 1978 death penalty statute expressly stated that the
penalties for special circumstance murder are inapplicable in
conspiracy cases. The Attorney General argues Hernandez is
distinguishable because it raised constitutional considerations
not present here, concerning the imposition of the death penalty
for a crime not involving the killing of another. This is true but
beside the point, since Hernandez was not a constitutional
decision; Hernandez instead invoked constitutional
considerations in an effort to understand the meaning of the
statute. Athar did not purport to overrule Hernandez in this
respect, but likewise employed the usual tools of statutory
interpretation to reach its conclusions about the intended reach
of amount-based enhancements in money laundering cases.
In any event, even looking beyond precedent, we see no
sound reason why an express statement should be required in
this context. In cases concerning the presumption favoring
retroactivity of ameliorative changes to the criminal law, we
have said that case law “do[es] not ‘dictate to legislative drafters
the forms in which laws must be written’ to express an intent to
modify or limit the retroactive effect of an ameliorative change;
rather, they require ‘that the Legislature demonstrate its
intention with sufficient clarity that a reviewing court can
discern and effectuate it.’ ” (People v. Conley (2016) 63 Cal.4th
646, 656–657.) The same holds true here. To instruct that
enhancements or other additional penalties should not apply to
individuals who conspire, but ultimately fail, to complete a
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particular crime, legislators need not express their intent in a
particular form; the legislative body need only demonstrate its
intent “ ‘with sufficient clarity that a reviewing court can
discern and effectuate it.’ ” (Id. at p. 657; see id. at p. 656.) In
other words, to answer the question in this case, we simply
employ the usual tools of statutory interpretation without
requiring an explicit statement of legislative intent to reserve
additional punishment for individuals who have completed a
crime, as opposed to those who have conspired to do so.
To do otherwise would force courts to err on the side of
more punishment unless a statute unambiguously forbids it.
Such an approach might have the virtue of simplicity. But it
carries with it the greater vice of imposing more punishment —
sometimes dramatically more — even when ordinary principles
of statutory interpretation tell us that more punishment is not
what the Legislature or voters intended. The sounder approach
is simply to read the special penal provision as we would any
other statute, using ordinary tools of statutory construction to
determine whether the legislative body intended for the penalty
to apply to individuals convicted of conspiracy or instead
intended to reserve added punishment for individuals convicted
of completed crimes.
III.
With these principles in mind, we turn our attention to the
alternate penalty provision in section 186.22(b)(4)(B). The
Legislature enacted Penal Code section 186.22 as part of the
California Street Terrorism Enforcement and Prevention Act
(STEP Act), a statute enacted “for the express purpose of
eradicating criminal activity by street gangs.” (People v. Loeun
(1997) 17 Cal.4th 1, 4, citing Pen. Code, former § 186.21; see
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Stats. 1988, ch. 1242, § 1, pp. 4127–4129 [enacting Pen. Code,
§ 186.22]; Stats. 1989, ch. 930, § 5.1, pp. 3253–3255 [reenacted
in the Omnibus Motor Vehicle Theft Act of 1989].)6 The STEP
Act created a new substantive offense of active participation “in
a criminal street gang” (Pen. Code, § 186.22, subd. (a)), as well
as a sentence enhancement for felonies committed “for the
benefit of, at the direction of, or in association with a criminal
street gang” (id., § 186.22, subd. (b)(1)). (See People v. Valencia
(2021) 11 Cal.5th 818, 829.)
Approximately a decade later, voters passed Proposition
21, the Gang Violence and Juvenile Crime Prevention Act of
1998, which amended section 186.22 in various respects.
(Primary Elec. (Mar. 7, 2000).) Proposition 21 created a new
crime of gang conspiracy, which punishes “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, assists, or benefits from any felonious criminal conduct
by members of that gang.” (Pen. Code, § 182.5.) Proposition 21
also amended the existing gang enhancement in section 186.22,
subdivision (b)(1) to create a new tiered system of enhancements
with five-year enhancements for individuals convicted of serious
6 The dismissal statutes were repealed and reenacted as Code
of Civil Procedure section 583.110 et seq. in 1984 without
substantive change. (Stats. 1984, ch. 1705, § 4, p. 6176 [repealed];
Stats. 1984, ch. 1705, § 5, pp. 6176–6181 [reenacted].)
18
PEOPLE v. LOPEZ
Opinion of the Court by Kruger, J.
felonies and 10-year enhancements for individuals convicted of
violent felonies. (Pen. Code, § 186.22, subd. (b)(1).) 7
Finally, as most relevant here, Proposition 21 created an
alternate penalty provision prescribing indeterminate terms of
life imprisonment for those who committed certain enumerated
felonies under the same gang-related circumstances
(§ 186.22(b)(4)). The alternate penalty provision states that “[a]
person who is convicted of a felony enumerated in this
paragraph” that is found to be gang-related for the purposes of
this section “shall, upon conviction of that felony, be sentenced
to an indeterminate term of life,” with a specified minimum term
of years depending on the felony. (Ibid.) One of those
enumerated felonies is “home invasion robbery, in violation of
7
As currently written, Penal Code section 186.22, subdivision
(b)(1), provides:
“Except as provided in paragraphs (4) and (5), a person who
is convicted of a felony committed for the benefit of, at the direction
of, or in association with a criminal street gang, with the specific
intent to promote, further, or assist in criminal conduct by gang
members, shall, upon conviction of that felony, in addition and
consecutive to the punishment prescribed for the felony or
attempted felony of which the person has been convicted, be
punished as follows:
“(A) Except as provided in subparagraphs (B) and (C), the
person shall be punished by an additional term of two,
three, or four years at the court’s discretion.
“(B) If the felony is a serious felony, as defined in subdivision
(c) of Section 1192.7, the person shall be punished by an
additional term of five years.
“(C) If the felony is a violent felony, as defined in subdivision
(c) of Section 667.5, the person shall be punished by an
additional term of 10 years.”
19
PEOPLE v. LOPEZ
Opinion of the Court by Kruger, J.
subparagraph (A) of paragraph (1) of subdivision (a) of Section
213,” which section 186.22(b)(4) makes punishable by a
minimum term of 15 years. (§ 186.22(b)(4)(B).)8 Section
186.22(b)(4)(B) makes no mention of conspiracy.
Our inquiry into legislative intent begins, as always, with
the statutory text. The statute provides that the alternate
penalties apply to a “person who is convicted of a felony
enumerated in this paragraph,” “upon conviction of that felony.”
(§ 186.22(b)(4), italics added.) Lopez argues that because
conspiracy is not “a felony enumerated in this paragraph,” the
8
Section 186.22(b)(4) provides:
“A person who is convicted of a felony enumerated in this
paragraph committed for the benefit of, at the direction of, or in
association with a criminal street gang, with the specific intent to
promote, further, or assist in criminal conduct by gang members,
shall, upon conviction of that felony, be sentenced to an
indeterminate term of life imprisonment with a minimum term of
the indeterminate sentence calculated as the greater of:
“(A) The term determined by the court pursuant to Section
1170 for the underlying conviction, including any
enhancement applicable under Chapter 4.5
(commencing with Section 1170) of Title 7 of Part 2, or
any period prescribed by Section 3046, if the felony is any
of the offenses enumerated in subparagraph (B) or (C) of
this paragraph.
“(B) Imprisonment in the state prison for 15 years, if the
felony is a home invasion robbery, in violation of
subparagraph (A) of paragraph (1) of subdivision (a) of
Section 213; carjacking, as defined in Section 215; a
felony violation of Section 246; or a violation of Section
12022.55.
“(C) Imprisonment in the state prison for seven years, if the
felony is extortion, as defined in Section 519; or threats
to victims and witnesses, as defined in Section 136.1.”
20
PEOPLE v. LOPEZ
Opinion of the Court by Kruger, J.
alternate penalty provision does not apply to a conspiracy
conviction. The Court of Appeal agreed with Lopez that the
statutory language of section 186.22(b)(4) is “unambiguous” in
that it applies to individuals convicted of the enumerated
crimes, and those crimes do not include conspiracy. (People v.
Lopez, supra, 46 Cal.App.5th at p. 529.) We agree as well.
Lopez argues this ought to be end of the story; when a
special penal provision includes a list of criminal convictions to
which it applies and that list does not include conspiracy, then
the statute plainly excludes conspiracy convictions, and this
plain meaning ought to control. Lopez acknowledges, as he
must, that Athar applied an enhancement to a conspiracy
conviction even though the enhancement statute in question did
not expressly refer to conspiracy. But he argues that Athar is
distinguishable because the statute in question imposed the
enhancements on individuals “punished under” the money
laundering statute, as opposed to individuals “convicted of”
money laundering in violation of the statute. (Athar, supra, 36
Cal.4th at p. 401.) Lopez argues this distinction is significant,
because “[w]hile a person convicted of conspiracy to commit
home invasion robbery might be arguably punished under
[Penal Code] sections 211 and 213 . . . they have certainly not
been convicted of that offense.”
Lopez also acknowledges our decision in Ruiz, supra, 4
Cal.5th at page 1105, discussed above, in which we concluded
that certain laboratory and drug program fees for persons
“convicted of” certain enumerated drug offenses are applicable
to persons convicted of conspiracy to commit those offenses. But
Lopez contends that Ruiz, too, is distinguishable because it
concerned a “direct consequence” of the target drug offense — no
21
PEOPLE v. LOPEZ
Opinion of the Court by Kruger, J.
different in that respect from a provision imposing a base term
of imprisonment from that offense — and not additional
punishment dependent on other findings about the manner or
circumstances in which the crime was committed.
To resolve this case, we ultimately need not decide
whether the use of the term “convicted of,” as opposed to
“punished under,” necessarily signals an intent to limit the
added punishment to the enumerated crimes of conviction. Nor
need we decide whether the answer varies depending on
whether the added punishment is a “direct consequence” of the
target offense or instead a consequence dependent on additional
findings about the manner or circumstances in which the crime
was committed. That is because the statute we are considering
here contains additional evidence of its intended reach. The
available evidence offers particular reason to believe that when
voters authorized indeterminate life terms as alternate
penalties for convictions of certain enumerated offenses found to
be gang-related, they did not intend to sweep in conspiracy
convictions as well.
We begin by observing that voters did refer to conspiracy
in other sections of Proposition 21. Proposition 21, for example,
imposes a five-year enhancement for conspiracy to commit
certain gang-related crimes. Specifically, the sentence
enhancements prescribed by section 186.22, subdivision (b)(1)
apply “in addition and consecutive to the punishment prescribed
for the felony or attempted felony of which the person has been
convicted.” (Pen. Code, § 186.22, subd. (b)(1).) The baseline
enhancement is two, three, or four years, but the statute
imposes a five-year enhancement when the felony is a “serious
felony, as defined in subdivision (c) of Section 1192.7.” (Id.,
22
PEOPLE v. LOPEZ
Opinion of the Court by Kruger, J.
subd. (b)(1)(B).) And voters amended subdivision (c) of section
1192.7 in Proposition 21 to expressly define the term “serious
felony” to include not only completed offenses such as robbery,
but also “any conspiracy to commit an offense described in this
subdivision,” including robbery. (Pen. Code, § 1192.7, former
subd. (c)(42), italics added.)9 But while voters thus authorized
a five-year enhancement for individuals convicted of conspiracy
to commit a listed felony, they did not adopt any comparable
provision with respect to the alternate life penalties prescribed
in section 186.22(b)(4). Under ordinary principles of statutory
interpretation, we presume this was an intentional choice. (See,
e.g., In re Jennings (2004) 34 Cal.4th 254, 273 [“ ‘where a
statute, with reference to one subject contains a given provision,
the omission of such provision from a similar statute concerning
a related subject is significant to show that a different legislative
intent existed with reference to the different statutes’ ”].)
Other provisions of Proposition 21 also expressly address
conspiracy. For instance, the substantive crime established by
section 186.22, subdivision (a) punishes a person who “actively
participates in a criminal street gang with knowledge that its
members engage in, or have engaged in, a pattern of criminal
9
As we address in greater detail below (at pp. 25–26, post),
prior to Proposition 21, subdivision (c) of Penal Code section 1192.7
included only one specific type of conspiracy — “conspiracy to
commit an offense described in paragraph (24) as it applies to
Section 11370.4 of the Health and Safety Code where the
defendant conspirator was substantially involved in the planning,
direction, or financing of the underlying offense” (§ 1192.7, former
subd. (c)(28), as amended by Stats. 1993, ch. 588, § 1, p. 2908).
23
PEOPLE v. LOPEZ
Opinion of the Court by Kruger, J.
gang activity.” (Pen. Code, § 186.22, subd. (a).)10 The statutory
definition of “ ‘pattern of criminal gang activity’ ” included “the
commission of, attempted commission of, or solicitation of,
sustained juvenile petition for, or conviction of” two or more
enumerated offenses. (Pen. Code, § 186.22, former subd. (e), as
amended by Stats. 1997, ch. 500, § 2, p. 3126.) In Proposition
21, voters amended this provision to add conspiracy, such that
a “ ‘pattern of criminal gang activity’ ” is now defined as
including the “commission of, attempted commission of,
conspiracy to commit, or solicitation of, sustained juvenile
petition for, or conviction of” two or more enumerated offenses.
(Pen. Code, § 186.22, subd. (e)(1), italics added.) Finally, as
noted, Proposition 21 created a new gang conspiracy offense in
Penal Code section 182.5. As we have previously explained, this
gang conspiracy offense and Penal Code section 182 are “quite
different provisions covering different kinds of conduct.”
(Johnson, supra, 57 Cal.4th at p. 263.) Rather than displace
traditional conspiracy law as applied to gang-related offenses,
such as the substantive crime of gang participation, section
182.5 “provided prosecutors additional flexibility in charging a
different kind of conspiracy.” (Johnson, at p. 263.)
In sum, Proposition 21 contains several provisions
specifically addressing the law of conspiracy. These provisions
10
Penal Code section 186.22, subdivision (a) provides: “A
person who actively participates in a 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 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 for 16 months, or two or three years.”
24
PEOPLE v. LOPEZ
Opinion of the Court by Kruger, J.
do not, however, include section 186.22(b)(4), which contains no
mention of conspiracy at all. The most natural reading of
Proposition 21 is that voters intended for conspiracies to commit
gang-related robberies to be punished by an additional five
years of imprisonment — as the amendments to the serious
felony provisions now provide — but did not believe that
unlawful agreements to commit robberies and other enumerated
crimes warranted an indeterminate life term under section
186.22(b)(4).
The Attorney General cautions against reading too much
into the disparate mentions of conspiracy in Proposition 21. He
notes, among other things, that voters may have had
independent reasons for adding conspiracy to commit a serious
felony to the list of serious felonies in Penal Code section 1192.7,
subdivision (c) — an amendment whose consequences were not
limited to application of the new serious felony enhancements in
Penal Code section 186.22, subdivision (b)(1). (See, e.g., Pen.
Code, § 667, subd. (a)(1) [prescribing enhancement for prior
serious felony]; id., subds. (b)–(f) [“Three Strikes” sentencing].)
He observes that at the time Proposition 21 was passed, Penal
Code section 1192.7, subdivision (c) did expressly list one
particular conspiracy offense (“conspiracy to commit an offense
described in paragraph (24) as it applies to Section 11370.4 of
the Health and Safety Code where the defendant conspirator
was substantially involved in the planning, direction, or
financing of the underlying offense”) (Pen. Code, § 1192.7,
former subd. (c)(28), as amended by Stats. 1993, ch. 588, § 1,
p. 2908), and voters may have decided it was necessary to add
conspiracy to the list to dispel any negative inferences that
might have arisen because of this more specific reference.
25
PEOPLE v. LOPEZ
Opinion of the Court by Kruger, J.
Perhaps so. But then, by similar logic, voters should have
added conspiracy to the list of crimes that will trigger an
indeterminate life term under section 186.22(b)(4), in order to
dispel any negative inferences that might have arisen because
of Proposition 21’s other express references to conspiracy. They
did not. Again, the most natural conclusion to draw is that
voters intended for the five-year serious felony enhancement to
apply to gang-related robbery conspiracies — and said so
expressly — but did not intend impliedly to prescribe
indeterminate life terms under section 186.22(b)(4) for
conspiracies to commit home invasion robbery or other
enumerated offenses.
Practical considerations reinforce this conclusion. The
consequence of interpreting the statute otherwise would be to
impose dramatically longer terms of imprisonment on
individuals convicted not only of traditional conspiracy, as
Lopez was in this case, but also of the new gang conspiracy crime
created by Proposition 21, which reaches a wider range of
conduct. As we noted in Johnson, supra, 57 Cal.4th at page 262:
Section 182.5 “embraces an active and knowing participant who
merely benefits from the crime’s commission, even if he or she
did not promote, further, or assist in the commission of that
particular substantive offense.” Under the Attorney General’s
interpretation of section 186.22(b)(4), a person who willfully
benefited from a home invasion robbery committed by other
gang members would presumably be subject to an
indeterminate life term, even though he or she never
participated in the crime itself. By contrast, the Attorney
General concedes that a person who actively participated with
other gang members in an attempted home invasion robbery
26
PEOPLE v. LOPEZ
Opinion of the Court by Kruger, J.
would receive a sentence of no more than 10 years.11 Given the
terms of Penal Code section 186.22, we consider it unlikely that
voters intended this result.
The legislative history of Proposition 21 contains nothing
to suggest a different conclusion. The voter information guide
described the measure as designed to respond to increases in
juvenile crime as well as gang-related crime. The official
summary prepared by the Attorney General stated that the
initiative, among other things, “[i]ncreases punishment for
gang-related felonies; death penalty for gang-related murder;
indeterminate life sentences for home-invasion robbery,
carjacking, witness intimidation and drive-by shootings; and
creates crime of recruiting for gang activities; and authorizes
wiretapping for gang activities.” (Voter Information Guide,
Primary Elec. (Mar. 7, 2000) Official Title and Summary of Prop.
21, p. 44.) Nothing in the materials indicates that the
indeterminate life sentences prescribed by section 186.22(b)(4)
were intended to apply to unlawful agreements to commit these
crimes, even when the agreements never come to fruition.
Though the voter information guide contains no direct evidence
that voters meant for the alternate penalties in section
11
The Attorney General shows his math as follows: “A gang-
related attempted home invasion robbery is punishable by up to
either nine years ([Pen. Code,] §§ 186.22, subd. (b)(4)(B), 664
[where target crime’s max punishment is life, punishment for
attempt is five, seven, or nine years]) or nine years six months,
based on half of the maximum term of nine years for attempted
home invasion robbery (§§ 213, subd. (a)(1)(A), 664; [additional
citations]) plus five years for the applicable gang enhancement
for a serious felony (§§ 186.22, subd. (b)(1)(B), 1192.7, subd.
(c)(19), (39)).”
27
PEOPLE v. LOPEZ
Opinion of the Court by Kruger, J.
186.22(b)(4) to apply only to completed offenses, it contains no
evidence to the contrary either.
The Attorney General argues that his interpretation of
section 186.22(b)(4) is consistent with the overall purpose of the
statute. Specifically, he contends that the alternate penalties in
section 186.22(b)(4) are designed to deter a particular form of
concerted action — action in association with or for the benefit
of a criminal street gang — so it would only make sense to apply
the penalties to conspiracies to commit the enumerated crimes.
The central difficulty with the argument is that Penal Code
section 186.22 is not silent on the subject of gang-related
conspiracies; it expressly addresses how gang-related
conspiracies are to be prosecuted and how they are to be
punished. Simply because section 186.22(b)(4) shares some of
the same crime-prevention aims as the law of conspiracy does
not mean that the voters must have implicitly intended to
punish conspiracies to commit home invasion robberies,
carjackings, or other enumerated offenses with the same
severity as the completed offenses.
In short, the fairest reading of section 186.22(b)(4) evinces
an intent to reserve the alternate penalties it prescribes for
individuals convicted of the completed target offenses. We are
bound to give effect to that intent, though it may not be stated
in express terms.
This conclusion does not relieve conspirators of liability
from their crimes. Even without the alternate penalty provision
in section 186.22(b)(4), the penalties for those crimes are often
substantial. As Lopez concedes, persons who conspire to commit
gang-related home invasion robbery face up to nine years in
prison (see Pen. Code, § 213, subd. (a)(1)(A)), with a serious
28
PEOPLE v. LOPEZ
Opinion of the Court by Kruger, J.
felony enhancement of an additional five years (see id.,
§§ 186.22, subd. (b)(1)(B), 1192.7, subd. (c)(19), (42)), as well as
any additional punishment that might be applicable by
operation of other enhancement provisions. The only question
before us is whether the trial court erred in sentencing Lopez to
the alternate penalty prescribed by section 186.22(b)(4).
Because section 186.22(b)(4), fairly read, does not apply to
conspiracy convictions, we conclude the superior court erred in
sentencing Lopez to an indeterminate life term under that
provision.12
IV.
We reverse the judgment of the Court of Appeal with
instructions to remand for resentencing consistent with this
opinion.
12
While this case was pending, the Legislature enacted
Assembly Bill No. 333 (2021–2022 Reg. Sess.) which amended
Penal Code section 186.22 to change the requirements for
proving a gang enhancement. (Stats. 2021, ch. 699, § 3.)
Although the changes are not directly relevant to the question
before us, Lopez nonetheless asks us to consider how Assembly
Bill No. 333 (2021–2022 Reg. Sess.) applies to his case. We
decline to address this question in the first instance, but instead
leave the subject for consideration by the Court of Appeal on
remand.
29
PEOPLE v. LOPEZ
Opinion of the Court by Kruger, J.
KRUGER, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
GROBAN, J.
JENKINS, J.
MILLER, J.*
* Associate Justice of the Court of Appeal, First Appellate
District, Division Two, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
30
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Lopez
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 46 Cal.App.5th 505Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S261747
Date Filed: April 7, 2022
__________________________________________________________
Court: Superior
County: Tulare
Judge: Joseph A. Kalashian*
__________________________________________________________
Counsel:
Benjamin Owens, under appointment by the Supreme Court, for
Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler
and Lance E. Winters, Chief Assistant Attorneys General, Michael P.
Farrell, Assistant Attorney General, Catherine Chatman, Julie A.
Hokans, Rachelle A. Newcomb and Darren K. Indermill, Deputy
Attorneys General, for Plaintiff and Respondent.
*Retired judge of the Tulare Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Benjamin Owens
P.O. Box 64635
Baton Rouge, LA 70896
(707) 745-2092
Darren K. Indermill
Deputy Attorney General
1300 I Street
Sacramento, CA 95814
(916) 210-7689