California Supreme Court Announces Conspiracy to Commit Home Invasion Robbery Not Subject to Enhancement to Indeterminate Life Sentence Under Penal Code § 186.22(b)(4)
by Matt Clarke
The Supreme Court of California held that conspiracy to commit home invasion robbery is not subject to enhancement to an indeterminate life sentence under California Penal Code § 186.22(b)(4).
Police investigating the Norteño criminal street gang had wire taps and live surveillance in place as Pedro Lopez and other gang members planned two home invasion robberies. They were seen, heard, and recorded procuring cars, weapons and other equipment and scoping out their targets. Police intercepted the conspirators after they said they were driving to the targets to commit the crimes.
A jury convicted Lopez of two counts of conspiracy to commit home invasion robbery [a combination of § 182(a)(l) (traditional conspiracy), § 211 (robbery), § 213(a)(l)(A) (punishment for home invasion robbery), and § 182.5 (criminal street gang conspiracy to commit home invasion robbery)] and attempted home invasion robbery [a combination of § 644 (attempt), § 211 and § 213(a)(l)(A)]. The jury also found all of the felonies to be gang-related under § 186.22(b)(l) and § 186.22(b)(4).
Section 182(a) requires that a conviction for “conspiracy” be punished “in the same manner and to the same extent as is provided for the punishment of that felony.” Conspiracy to commit home invasion robbery normally carries a sentence of three, six or nine years. However, Proposition 21 of 2000 created an alternative penalty provision prescribing indeterminate life sentences for persons convicted of certain offenses, including “home invasion robbery,” which carries a minimum term of 15 years to life under § 186.22(b)(4).
The trial court sentenced Lopez to 19 years for attempted home invasion robbery. It doubled the minimum in the indeterminate life sentence because of a prior strike, added another five years for a prior serious felony conviction under § 667(a), and then sentenced Lopez to 35 years to life, to be served consecutively to the 19-year sentence. It stayed all other counts and enhancements. Lopez appealed.
The Court of Appeal reversed the conviction for the second count of conspiracy but held that the indeterminate life sentence is permissible for the other conspiracy count. Lopez sought further review, which was granted.
The California Supreme Court appointed attorney Benjamin Owens of Baton Rouge, Louisiana, to represent Lopez. He argued that the § 186.22 sentence enhancement does not apply to criminal conspiracy.
The Court examined the history of conspiracy in California, noting that § 182 was first enacted in 1872 as a misdemeanor, punishable by up to a year in jail and/or a maximum fine of $1,000. The 1919 Legislature amended the conspiracy statute to change the punishment to its current form—basically punishing conspiracy the same as if the crime had been completed.
The Court noted that, since 1919, the Legislature and voters have enacted a series of sentencing enhancements and alternative sentences, raising “new questions about the operation of the general instructions in §182 for the punishment of conspiracy.” The parties agreed that absent § 186.22(b)(4), the penalty for conspiracy to commit home invasion robbery would be the same as home invasion robbery: 3, 6, or 9 years of imprisonment. The question is whether § 186.22(b)(4) applies to a conspiracy charge.
The Court had previously found that a special circumstance that authorized life without parole for a murder conviction when financial gain is involved could not be applied to conspiracy to commit murder. People v. Hernandez, 69 P.3d 446 (Cal. 2003). The Hernandez Court found “nothing in the ballot materials [surrounding Proposition 7 of 1978] 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.”
The Hernandez Court also noted an inequity would arise should conspiracy be punished so harshly as it would then be punished much more severely than an attempt, which is “generally punishable for one-half the term of imprisonment prescribed for the completed crime.” It noted that the rule of lenity requires that, when “two reasonable interpretations of the same provision stand in equipoise” the provision should be construed “most favorably to the defendant.”
The Court held that the reasoning of Hernandez applies to the current case. It rejected the Court of Appeal’s determination that People v. Athar, 114 P.3d 806 (Cal. 2005), which upheld the application of an enhancement to conspiracy to commit money laundering, requires applying the enhancement of § 186.22(b)(4) in this case. The Court explained that, properly understood, Athar requires that the inquiry go beyond the “plain” language of § 182. It discounted any language in Athar that might support the proposition that a potential enhancement of a conspiracy sentence is mandatory unless prohibited by statute.
Examining § 186.22, the statute codifying Proposition 21, the Court found no legislative intent to have the alternative indeterminate life sentences apply to conspiracy convictions. However, it did contain “evidence of its intended reach…. In sum, Proposition 21 contains several provisions specifically addressing the law of conspiracy. These provisions 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 conspiracy to commit gang-related robberies to be punished by an additional five years of imprisonment,” not an indeterminate life sentence. Thus, the Court ruled that the trial court erred in sentencing Lopez to an indeterminate life term under § 186.22(b)(4).
Accordingly, the Court reversed the judgment of the Court of Appeal with instructions to remand for resentencing consistent with this opinion. See: People v. Lopez, 507 P.3d 925 (Cal. 2022).
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Related legal case
People v. Lopez
|Cite||507 P.3d 925 (Cal. 2022)|
|Level||State Court of Appeals|