PEOPLE v. SEVEY

No. C063561.

THE PEOPLE, Plaintiff and Respondent, v. KYLE ANDREW SEVEY, Defendant and Appellant.

Court of Appeals of California, Third District, San Joaquin.


NOT TO BE PUBLISHED

SCOTLAND, Acting P. J.*

Defendant Kyle Sevey entered a negotiated plea of guilty to participating in a criminal street gang (Pen. Code, § 186.22, subd. (a)), and the trial court dismissed charges of kidnapping for extortion, dissuading a witness by force or threat, conspiracy, and second degree robbery. Defendant was sentenced to state prison for the lower term of 16 months and was ordered to register as a gang member (Pen. Code, § 186.30).

On appeal, defendant contends the gang registration requirement is unconstitutionally vague and overbroad on its face and as applied to him under the facts of this case. This requirement, set forth in Penal Code section 186.32, subdivision (a)(2)(C), compels him to submit to the sheriff or police "[a] written statement . . . giving any information that may be required by the law enforcement agency." (Further section references are to the Penal Code unless otherwise specified.) For reasons that follow, we shall affirm the judgment.

DISCUSSION

I

Section 186.30, subdivision (a) states that defendant must register with an appropriate law enforcement agency "within 10 days of release from custody" and thereafter at other specified times. Section 186.32 describes the registration requirements, stating among other things: "A written statement, signed by the adult, giving any information that may be required by the law enforcement agency, shall be submitted to the law enforcement agency." (§ 186.32, subd. (a)(2)(C).)

Defendant contends that, to the extent this requirement compels him to provide "any information" the agency sees fit to request, the statute is vague and overbroad on its face and permits arbitrary and discriminatory enforcement.1

However, a "statute will not be held void for vagueness `if any reasonable and practical construction can be given its language or if its terms may be made reasonably certain by reference to other definable sources.'" (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1117; accord People v. Bailey (2002) 101 Cal.App.4th 238, 244-246.)

The gang registration statute can be made certain by reference to its underlying purpose "to enhance law enforcement officers' ability to prevent gang-related crime by keeping informed of the location of known gang associates. `Registration requirements generally are based on the assumption that persons convicted of certain offenses are more likely to repeat the crimes and that law enforcement's ability to prevent certain crimes and its ability to apprehend certain types of criminals will be improved if these repeat offenders' whereabouts are known.' [Citation.]" (People v. Bailey, supra, 101 Cal.App.4th at p. 245, quoting People v. Adams (1990) 224 Cal.App.3d 705, 710.)

Thus, section 186.32, subdivision (a)(2)(C) "may reasonably be construed to require descriptive or identifying information that aids law enforcement in [such] monitoring," similar to registration requirements of sex offenders, narcotics offenders, and arsonists. (People v. Sanchez (2003) 105 Cal.App.4th 1240, 1243-1244; People v. Bailey, supra, 101 Cal.App.4th at p. 245.) As so construed, the registration provision is not unconstitutionally vague nor impermissibly overbroad because it does not compel answers to unlimited questions. Rather, it requires only such information necessary to carry out the legitimate purposes of the Street Terrorism and Prevention Act of 1988. (People v. Sanchez, supra, 105 Cal.App.4th at p. 1246; People v. Bailey, supra, 101 Cal.App.4th at p. 245.)

Accordingly, we construe the gang registration requirement that the registrant submit a "written statement . . . giving any information that may be required by the law enforcement agency" (§ 186.32, subd. (a)(2)(C)) to mean the registrant must provide information necessary for the law enforcement agency to locate the registrant—such as the person's full name; aliases; date of birth; temporary and permanent residences; description and license plate number of any vehicle the person owns or drives; information regarding the person's employment or school, if any; and the name, address, and telephone number of his or her parole officer. So construed, the statutory provision does not permit arbitrary and discriminatory enforcement. (People v. Bailey, supra, 101 Cal.App.4th at p. 245; see also In re Jorge G. (2004) 117 Cal.App.4th 931, 948-949.)

The People argue that law enforcement should also be allowed to demand from gang registrants the identities and locations of other gang members, and that In re Jorge G., supra, 117 Cal.App.4th 931 erred in holding otherwise. (Id. at p. 949.) We disagree.

As the Court of Appeal in In re Jorge G. explained, "The privilege against self-incrimination is violated by a registration statute if it requires disclosure of information that would `prove a significant "link in a chain" of evidence tending to establish' the registrant's commission of a crime [citation] where the statute is `directed at a highly selective group inherently suspect of criminal activities.' [Citation]." (In re Jorge G., supra, 117 Cal.App.4th at pp. 949-950.) Routine booking information, such as that permitted under the aforesaid limited interpretation of the phrase "any information" in section 186.32, is not incriminatory and does not violate the privilege against self-incrimination. (Id. at p. 950.) However, unless so limited, "the `any information' requirement would allow law enforcement to require disclosures that would be `a significant "link in a chain"' in proving that gang registrants have committed crimes. [Citation.] This is particularly true since active, knowing participation in a criminal street gang is an element of a crime defined by section 186.22, subdivision (a). . . . [T]o require disclosure of the identities of other gang members with whom the registrant associates would obviously help in proving that the registrant is a knowing participant in a gang." (In re Jorge G., supra, 117 Cal.App.4th at p. 950.)

By "allowing law enforcement only to demand identifying and locational information about the registrant, there is no violation of the privilege against self-incrimination." (In re Jorge G., supra, 117 Cal.App.4th at p. 950.)

II

Defendant also argues that the statute is unconstitutional as applied to him because nothing in the record shows he belongs to a particular gang. He denies that he is a member of a gang, notes that the prosecutor's recitation of the factual basis for the plea was devoid of any indication defendant was acting for the benefit of a gang, and argues that the prosecutor did not identify a specific gang to which defendant allegedly belonged, other than a generic reference to a "skinhead gang." According to defendant, his identification as a member of the skinhead gang simply suggests he shares a white supremacy ideology, but "does not assign him to any particular operative criminal street gang." (People v. Williams (2008) 167 Cal.App.4th 983, 987-989 [information establishing that the "Peckerwoods" were a criminal street gang did not establish the "Small Town Peckerwoods" were a criminal street gang absent evidence demonstrating a sufficient connection beyond a shared ideology].) (AOB 14-15) Thus, he argues, "asking him to identify a gang affiliation when he registered under section 186.32 would be asking him to directly incriminate himself under section 186.22, subdivision (a)." We are not persuaded.

The prosecutor's recitation of the factual basis for the plea stated codefendant Derik Punneo was arrested for attempted rape and resisting arrest after he assaulted a woman and was forced out of the house by two others, who called the police. While Punneo was in custody, he contacted defendant and codefendant Taylor Schwartz, told them what had happened, and accused the victims of stealing his money. Defendant and Schwartz found the two who had called the police; forced them into a car; drove them home; ransacked their house; beat up the man; and threatened that, if the victims went to court, bad things would happen and their house would be burned down. The prosecutor stated there was information that Punneo, Schwartz, and defendant were members of a skinhead gang and that Schwartz and defendant aided Punneo because they were all skinheads. Both Punneo and Schwartz had tattoos and indicia of being members of the skinhead gang; and a gang expert would testify that Punneo, Schwartz, and defendant all acted for the benefit of a criminal street gang and participated in a gang known as the skinheads.

Thereafter, defendant pled guilty to being an active member of a criminal street gang (§ 186.22, subd. (a)), which, according to the statutory elements, meant that he admitted (1) he was an active participant in a criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and (2) he willfully promoted, furthered, or assisted in felonious criminal conduct by members of that gang. A violation of section 186.22, subdivision (a) "is a substantive offense whose gravamen is the participation in the gang itself." (People v. Herrera (1999) 70 Cal.App.4th 1456, 1467.) A person "actively participates in any criminal street gang," within the meaning of the statute, by involvement with a criminal street gang that is more than nominal or passive. (People v. Martinez (2008) 158 Cal.App.4th 1324, 1331.) Having pled guilty to violating section 186.22, subdivision (a), defendant cannot now claim that he was not a member of a gang.

Relying on People v. Ngoun (2001) 88 Cal.App.4th 432 (hereafter Ngoun) and People v. Ferraez (2003) 112 Cal.App.4th 925 (hereafter Ferraez), defendant disagrees. He asserts that one does not have to be a member of a gang to be convicted of violating section 186.22, subdivision (a). This is so, defendant argues, because the statute applies to aiders and abettors of felonious conduct, not just direct participants.

Defendant confuses proof of the second element of the statute with the first. Ngoun establishes nothing more than that one can willfully promote, further, or assist in felonious criminal conduct by gang members as either an aider and abettor or as a direct participant in the felonious conduct (Ngoun, supra, 88 Cal.App.4th at p. 436); and Ferraez simply found that a gang expert's testimony provided sufficient circumstantial evidence to establish defendant was selling drugs for the benefit of a criminal street gang. (Ferraez, supra, 112 Cal.App.4th at p. 930.)

When defendant is paroled and required to register as a gang member, there is no reason that the law enforcement agency cannot ask him the specific name of the gang to which he belonged at the time of his conviction. This is so because his past behavior and gang membership will not incriminate him. His answer will simply assist the agency to ensure that he does not continue to participate in his prior gang in violation of section 186.22. Defendant may invoke the privilege against self-incrimination only "if he is confronted by a substantial and `"real"' hazard of incrimination.

[Citation.] If the written statement requirement of section 186.32 is narrowly construed as we have held that it should be [citation], a law enforcement officer taking the registration would not expect to elicit an incriminating response. [Citation.] Any hazard of incrimination is speculative and insufficient to implicate defendant's right to remain silent . . . ." (People v. Sanchez, supra, 105 Cal.App.4th at pp. 1245-1246.)

For the reasons stated above, defendant's challenge to the constitutionality of the gang registration statute fails.

III

We deem defendant to have raised the issue whether amendments to Penal Code section 4019, effective January 25, 2010, which increased the rate at which prisoners earn presentence conduct credits, apply retroactively to his pending appeal and entitle him to additional conduct credits. (Misc. order No. 2010-002.) The contention fails because defendant was convicted of a serious felony and thus is excluded from the benefit of the amendment. (§ 4019, subds. (b)(2) & (c)(2); Stats. 2009, 3d Ex. Sess., ch. 28, § 50; § 1192.7, subd. (c)(28).)

DISPOSITION

The judgment is affirmed.

We concur.

NICHOLSON, J.

ROBIE, J.

FootNotes


* Retired Presiding Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
1. The People respond that defendant forfeited his constitutional challenge because he did not raise it in trial court, despite having the opportunity to do so. Given that the issue is of constitutional magnitude, we exercise our discretion to address it, particularly because defendant's facial challenge to the statute involves a pure question of law that can be resolved without reference to the factual record developed in the trial court. (People v. Welch (1993) 5 Cal.4th 228, 235; People v. Marchand (2002) 98 Cal.App.4th 1056, 1060-1061.)

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