THE PEOPLE, Plaintiff and Appellant v. RICARDO AGUIRRE ROBLES, Defendant and Respondent, 23 Cal. 4th 1106

Opinion KENNARD, J. This is the fifth, and probably not the last, in a series of recent decisions by this court that involve Penal Code

section 186.22, a provision of the California Street Terrorism Enforcement and Prevention Act of 1988, also known as the STEP Act. Three of these cases, People v. Gardeley (1996) 14 Cal.4th 605 [59 Cal.Rptr.2d 356, 927 P.2d 713], People v. Loeun (1997) 17 Cal.4th 1 [69 Cal.Rptr.2d 776, 947 P.2d 1313], and People v. Zermeno (1999) 21 Cal.4th 927 [89 Cal.Rptr.2d 863, 986 P.2d 196], concerned subdivision (b)(1) of

section 186.22; that subdivision increases the punishment for gang-related felonies. The fourth case, People v. Castenada (2000) 23 Cal.4th 743 [97 Cal.Rptr.2d 906, 3 P.3d 278] (Castenada), involved subdivision (a), which defines a particular offense to which only gang members are subject. An element of that offense is that the defendant “actively participates in any criminal street gang.” (§ 186.22, subd. (a).) In those four decisions,

section 186.22 was directly at issue. This case indirectly involves subdivision (

a) of

section 186.22. There is an express reference to that provision in

section 12031, subdivision (a)(2)(C), under which defendant was charged. That subdivision elevates from a misdemeanor to a felony the offense of carrying a loaded firearm in public when committed by “an active participant in a criminal street gang, as defined in subdivision (

a) of

Section 186.22, under the Street Terrorism Enforcement and Prevention Act.” (§ 12031, subd. (a)(2)(C), italics added.) Our task is to ascertain what the Legislature meant by the quoted phrase. I Defendant was charged with carrying a loaded firearm in public in violation of

section 12031, subdivision (a)(1). That offense is a misdemeanor. {Id., subd. (a)(2)(G).) But the offense was charged as a felony here because, as we mentioned earlier, the complaint also alleged under

section 12031, subdivision (a)(2)(

C) that defendant was “an active participant in a criminal street gang, as defined in subdivision (

a) of

Section 186.22.” At the preliminary hearing, the prosecution presented this evidence: Officer Warren Tojong of the Los Angeles Police Department’s “Community Resources Against Street Hoodlums” (CRASH) unit was in a marked police car near the intersection of Hyperion Avenue and Sunset Boulevard when he noticed a group of individuals “in gang attire” standing at the comer. Defendant, who was in the group, looked towards the police car and then discarded “a blue metal-like object” in a planter. Officer Tojong detained defendant and retrieved the item, a fully loaded .22-caliber revolver.

After his arrest, defendant told Officer Tojong that he was a member of “La Mirada Locos,” a local street gang. Detective Louis Vargas testified that members of La Mirada Locos had committed a series of armed robberies a month before defendant’s arrest, and that the previous year two members of the same gang had stabbed a high school student on a bus. Vargas had no reason to believe that defendant knew of these incidents. , . Defendant moved to dismiss the felony complaint. He noted that subdivision (a)(2)(

C) of

section 12031, under which he was charged, required the prosecution to show he fell within the statutory language of being “an active participant in a criminal street gang, as defined in subdivision (

a) of

Section 186.22.” The latter provision contains no such definition, however; instead it sets forth the elements of a separate offense for gang members. Thus, defendant argued, the prosecution had to, but did not, present evidence on each element of the gang offense described in

section 186.22, subdivision (a). In response, the prosecution contended that it need show only one element of the gang offense defined in that provision, namely, that defendant “actively participates” in a criminal street gang. The magistrate agreed with defendant and reduced the felony charge to a misdemeanor. The prosecution unsuccessfully moved in superior court to reinstate the felony complaint (§ 871.5). On the prosecution’s appeal of that denial order (§ 1238, subd. (a)(9)), the Court of Appeal agreed with the prosecution that

section 12031, subdivision (a)(2)(

C) requires proof of only one element of the offense described in

section 186.22, subdivision (a): that the defendant “actively participates” in a criminal street gang. The Court of Appeal, relying on People v. Green (1991) 227 Cal.App.3d 692 [278 Cal.Rptr. 140], nonetheless concluded that the superior court had properly denied the prosecution’s motion to reinstate the felony complaint. In Green, a different Court of Appeal had held that a defendant “actively participates” in a gang within the meaning of

section 186.22, subdivision (

a) only if the defendant devotes “all, or a substantial part of his time and efforts to the . . . gang.” (People v. Green, supra, at p. 700.) Here, the prosecution did not present such evidence at the preliminary hearing. We granted review. II

Section 12031, subdivision (a)(1) provides: “A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or any public place or on any public street in a prohibited area of unincorporated territory.” Generally, the offense is “a misdemeanor, punishable by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that imprisonment and fine.” (§ 12031, subd. (a)(2)(G).) But the offense becomes a felony punishable by a state prison term of 16 months, two, or three years (§ 18) when, as here relevant, “the person is an active participant in a criminal street gang, as defined in subdivision (

a) of

Section 186.22, under the Street Terrorism Enforcement and Prevention Act.” (§ 12031, subd. (a)(2)(C) (section 12031(a)(2)(C)), italics added.) Contrary to the express language of

section 12031(a)(2)(C), however, subdivision (

a) of

section 186.22 (section 186.22(a)) does not at all define the statutory phrase “an active participant in a criminal street gang.” Rather,

section 186.22(

a) sets forth the elements of a gang offense that is punishable either as a felony or a misdemeanor: “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 for 16 months, or two or three years.” (§ 186.22(a).) Because

section 186.22(

a) does not at all define the challenged phrase in

section 12031(a)(2)(C), we need to determine what definition the Legislature had in mind when it said in

section 12031(a)(2)(

C) that the phrase “an active participant in a criminal street gang” was “defined” in

section 186.22(a).

(2) In construing

section 12031(a)(2)(C), “ ‘as with any statute, we strive to ascertain and effectuate the Legislature’s intent.’ ” (Castenada, supra, 23 Cal.4th at p. 746; People v. Loeun, supra, 17 Cal.4th 1, 8.) “Because statutory language ‘generally provide[s] the most reliable indicator’ of that intent (People v. Gardeley, supra, 14 Cal.4th at p. 621; Hsu v. Abbara (1995) 9 Cal.4th 863, 871 [39 Cal.Rptr.2d 824, 891 P.2d 804]), we turn to the words themselves, giving them their ‘usual and ordinary meanings’ and construing them in context (People v.

Loeun, supra, at p. 9).” (Castenada, supra, at p. 747.) If the language contains no ambiguity, we presume the Legislature meant what it said, and the plain meaning of the statute governs. (Ibid.) If, however, the statutory language is susceptible of more than one reasonable construction, we can look to legislative history in aid of ascertaining legislative intent. (Diamond Multimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4th 1036, 1055 [80 Cal.Rptr.2d 828, 968 P.2d 539].) The language of

section 12031(a)(2)(

C) is subject to more than one reasonable construction. Its phrase “an active participant in a criminal street gang, as defined in subdivision (

a) of

Section 186.22” might refer to the substantive offense defined in

section 186.22(a), as the magistrate here concluded. Or it might refer to just one element of that crime, that the defendant “actively participates in any criminal street gang,” as the Court of Appeal here held. Both constructions are plausible. Accordingly, we can consider the legislative history of

section 12031(a)(2)(

C) to assist us in ascertaining the Legislature’s intent.

Section 12031(a)(2)(

C) has its origins in Assembly Bill No. 632 (1995-1996 Reg. Sess.). The People point to a comment in a Senate Committee report on that bill as supporting their argument that under

section 12031(a)(2)(

C) they need prove only one element of the substantive offense defined in

section 186.22(a), namely that the defendant “actively participates” in a criminal street gang. The comment in that report states that “other felony penalties may currently apply in some of the situations” covered by the proposed legislation. (Sen. Com. on Crim. Procedure, Rep. on Assem. Bill No. 632 (1995-1996 Reg. Sess.) as amended June 2, 1995, com. 3, p. 8 (hereafter Senate Committee Report).) It goes on to state, “For example, if a person is actively engaged in any street gang activity, they [sic] are currently subject to potential felony prosecution.” (Ibid.) The People offer this reasoning: A person actively engaged in street gang activity can be prosecuted under

section 186.22(a), which defines a substantive gang offense that is punishable as either a misdemeanor or a felony. Felony punishment for that crime is 16 months, two, or three years (§ 18) but can be increased by one, two, or three years under

section 12021.5, subdivision (

a) when a person commits the offense while carrying a firearm. Thus, a defendant who carries a firearm when committing a violation of

section 186.22(

a) faces a potential six-year prison term. In contrast, one who violates

section 12031(a)(2)(C), by carrying a loaded firearm when an active participant in a criminal street gang, as defined in subdivision (

a) of

section 186.22, commits a felony offense subject to a maximum three-year prison sentence. (§ 18.) According to the People, the Legislature would have had no incentive to have felony liability under

section 12031(a)(2)(

C) for carrying a loaded firearm depend on proof of a violation of

section 186.22(a), when it was aware that a violation of

section 186.22(a)’s gang provision, while carrying a firearm (whether loaded or unloaded), already exposed the violator to a potential six years in prison, a term greater than the maximum three-year felony sentence for violating

section 12031(a)(2)(C). We are not persuaded. It is true that a violation of

section 186.22(a), when punished as a felony, results in a maximum three-year prison sentence. It is also true that a violation of that

section while carrying a firearm triggers

section 12021.5(a), which imposes additional punishment of up to three years in state prison. Thus, the People are correct that a defendant violating

section 186.22(

a) while carrying a loaded firearm could be subject to a longer term of imprisonment (six years) than the maximum three-year term for violating

section 12031(a)(2)(C), under which defendant here was charged. What the People overlook, however, is that to be subject to increased punishment under

section 12021.5(

a) for carrying a firearm “during the commission or attempted commission” of the substantive street gang crime described in

section 186.22(a), the carrying of the firearm must occur as part of the violation of

section 186.22(a). Thus, it is entirely plausible that the Legislature may have enacted

section 12031(a)(2)(

C) to cover a situation not subject to felony punishment under

section 186.22(a): when the person carrying the loaded firearm had at some other time committed a violation of

section 186.22(a). This

interpretation of legislative intent is consistent with the Senate Committee Report comment on which the People rely. In stating that “other felony penalties may currently apply in some of the situations” covered by the proposed legislation (Sen. Com. Rep., supra, com. 3, p. 8, italics added), the comment suggests the Legislature may have intended the proposed legislation to cover those situations not already subject to felony punishment. The Senate Committee Report comment also notes the potential for felony punishment under the law in effect before enactment of

section 12031(a)(2)(C) (Sen. Com. Rep., supra, com. 3, p. 8), an apparent reference to

section 186.22(a), which as a “wobbler” is potentially punishable as a felony but is also punishable as a misdemeanor at the discretion of the trial court. When the offense is treated as a misdemeanor, the maximum penalty is only one year in county jail, and the offense is not subject to

section 12021.5(a)’s added punishment for carrying a firearm during a felony gang offense. Thus, contrary to the People’s contention here, the Legislature may have enacted

section 12031(a)(2)(

C) to ensure that a person violating

section 186.22(

a) while carrying a loaded firearm will incur felony rather than misdemeanor punishment. Finally, the People suggest a drafting error in

section 12031(a)(2)(C). They argue that in drafting this provision the Legislature mistakenly referred to subdivision (

a) of

section 186.22 instead of that section’s subdivision (f). Under that view,

section 12031(a)(2)(

C) would elevate from a misdemeanor to a felony the offense of carrying a loaded firearm in public by a defendant who is “an active participant in a criminal street gang, as defined in subdivision (/)” of

section 186.22, rather than by one who is “an active participant in a criminal street gang, as defined in subdivision (a)” of that section. (Italics added.) The People point to the Senate Committee Report, which mentions

section 186.22, subdivision (f). (Sen. Com. Rep., supra, com. 5, p. 8.) As the People correctly note, subdivision (f), unlike subdivision (a), does include a definition—it defines the phrase “criminal street gang.” (§ 186.22, subd. (f).) Based on the Senate Committee Report’s mention of

section 186.22’s subdivision (f), the People ask us to assume that

section 12031 (a)(2)(C)’s reference to “subdivision (a)” of

section 186.22 was a drafting error and that the Legislature really intended that reference to be to subdivision (

f) of

section 186.22. We decline to do so. This court does not lightly assume drafting error by the Legislature. “ ‘It is fundamental that legislation should be construed so as to harmonize its various elements without doing violence to its language or spirit.’ ” {People v. Garcia (1999) 21 Cal.4th 1, 6 [87 Cal.Rptr.2d 114, 980 P.2d 829]; Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 788 [176 Cal.Rptr. 104, 632 P.2d 217].) Thus, we may disregard statutory language only “when compelled by necessity” and to conform to legislative intent. {People v. Garcia, supra, at p. 6; see People v.

Broussard (1993) 5 Cal.4th 1067, 1072 [22 Cal.Rptr.2d 278, 856 P.2d 1134].) Such compulsion does not exist here because “the statute is reasonably susceptible to an

interpretation that harmonizes all its parts without disregarding or altering any of them.” {People v. Garcia, supra, at p. 6.) As we have explained, there are two possible harmonizing

interpretations of

section 12031(a)(2)(C)’s phrase “an active participant in a criminal street gang, as defined in subdivision (

a) of

Section 186.22.” The phrase could refer either to the substantive gang offense defined in

section 186.22(

a) or to just one element of that offense (that the defendant “actively participates” in a criminal street gang). Because the legislative history of

section 12031(a)(2)(

C) gives no clear guidance regarding which of these two meanings the Legislature intended, we look to yet another rule of statutory construction. When, as here, the language of a penal law is reasonably susceptible of two

interpretations, we construe the law “as favorably to criminal defendants as reasonably permitted by the statutory language and circumstances of the application of the particular law at issue." (People v. Gardeley, supra, 14 Cal.4th 605, 622; People v. Overstreet (1986) 42 Cal.3d 891, 896 [231 Cal.Rptr. 213, 726 P.2d 1288].) This “protects the individual against arbitrary discretion by officials and judges and guards against judicial usurpation of the legislative function which would result from enforcement of penalties when the legislative branch did not clearly prescribe them.” (People v. Overstreet, supra, at p. 896.) Applying that rule here, we construe

section 12031(a)(2)(C)‘s phrase “active participant in a criminal street gang, as defined in subdivision (

a) of

Section 186.22” as referring to the substantive gang offense defined in

section 186.22(a). We pointed out earlier that contrary to what

section 12031(a)(2)(

C) says,

section 186.22(

a) does not at all define the phrase “active participant in a criminal street gang.” Instead,

section 186.22(

a) defines a substantive gang offense, setting forth the elements of that offense. Thus, carrying a loaded firearm in public becomes a felony under

section 12031(a)(2)(

C) when a defendant satisfies the elements of the offense described in

section 186.22(a). Those elements are “actively participat[ing] in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity” and “willfully promot[ing], further[ing], or assisting] in any felonious criminal conduct by members of that gang.” (§ 186.22(a).) At defendant’s preliminary hearing on the felony charge of carrying a loaded firearm in public, the prosecution presented evidence that defendant was a member of a criminal street gang, La Mirada Locos. But the prosecution presented no evidence of the other requirements of

section 186.22(a): “knowledge that its members engage in or have engaged in a pattern of criminal gang activity” and “willfully promoting], furthering], or assisting] in any felonious criminal conduct by members of that gang." (§ 186.22(a).) Accordingly, as the magistrate at the preliminary hearing ruled, the prosecution failed to establish the requirement in

section 12031(a)(2)(C), under which defendant was charged, that defendant was “an active participant in a criminal street gang, as defined in subdivision (

a) of

Section 186.22.” Because the prosecution failed to do so, defendant could not be held to answer under

section 12031(a)(2)(C), which elevates to a felony the misdemeanor offense of carrying a loaded firearm in public. Disposition Although the Court of Appeal was wrong in concluding that

section 12031(a)(2)(

C) incorporates only the “actively participates in any criminal street gang” element of the substantive offense defined in

section 186.22(a), it reached the correct result in upholding the superior court’s order denying the People’s motion to reinstate defendant’s felony complaint, which the magistrate at the preliminary hearing had dismissed. Therefore, we affirm the judgment of the Court of Appeal. George, C. J., Mosk, J., Werdegar, J., and Chin, J., concurred. All further statutory references are to the Penal Code. In Castenada, we disagreed with that definition, holding that a defendant “actively participates” in a criminal street gang within the meaning of

section 186.22, subdivision (

a) by any gang involvement that is more than nominal or passive. (Castenada, supra, 23 Cal.4th at p. 747.)

Section 12021.5, subdivision (a) (section 12021.5(a)) provides in relevant part: “Every person who carries a loaded or unloaded firearm on his or her person, or in a vehicle, during the commission or attempted commission of any street gang crimes described in subdivision (

a) or (

b) of

section 186.22, shall, upon conviction of the felony or attempted felony, be punished by an additional term of imprisonment in the state prison for one, two, or three years. ...” The dissent asserts that

section 12031(a)(2)(C)’s phrase “an active participant in a criminal street gang, as defined in subdivision (

a) of

Section 186.22” unambiguously refers to just one element of the offense defined in

section 186.22(a). (Dis. opn., post, at p. 1117.) Yet even the People, who advocate the dissent’s statutory construction, concede the ambiguity of the phrase. The dissent also stresses that the legislative analysis of then proposed

section 12031(a)(2)(

C) states the provision would increase the penalty for carrying a loaded firearm “for ‘a member of a “street gang,” ’ for ‘a gang member,’ for ‘known gang members,’ or for ‘active members of criminal street gangs.’ ” (Dis. opn., post, at p. 1119.) But gang membership is not an evidentiary requirement of either

section 186.22(a)’s “actively participates” element or for a violation of that offense. (See Castenada, supra, 23 Cal.4th at p. 747.) Accordingly, the references in the legislative analysis to gang members and gang membership do not at all resolve

section 12031(a)(2)(C)’s inherent ambiguity.