Statutory Construction Voter Initiative
DISCUSSION
The sole contention made by defendant in this appeal is that the trial court erred by imposing a gang registration requirement under section 186.30. Defendant concedes that he has had “prior gang involvement,” but argues that section 186.30 authorizes a gang registration order only for “the nature of the crime for which he is being sentenced,” not any past gang associations. The Attorney General agrees that a gang registration order must be based upon “a current conviction for a ‘crime’ that is found to be ‘gang related,’ ” not a probation violation for association with gang members. Nevertheless, the Attorney General maintains that defendant’s “lengthy criminal history,” including his probation violation, provides evidentiary support for the finding that “commission of the auto burglary was related to his membership in a gang” as required to authorize a gang registration order under section 186.30.
Section 186.30 provides that “any person convicted in a criminal court or who has had a petition sustained in a juvenile court” of either participating in a criminal street gang in violation of section 186.22, subdivision (a), or a “crime that the court finds is gang related,” or where a gang enhancement pursuant to section 186.22 subdivision (b) has been found to be true, shall “register” with the local law enforcement agency as a criminal street gang member.[4] (People v. Sanchez (2003) 105 Cal.App.4th 1240, 1242.) If any of three specified conditions are found to exist, a gang registration order is mandatory. (Ibid.; see also In re Eduardo C., supra, 90 Cal.App.4th 937, 943; People v. Monroe (1985) 168 Cal.App.3d 1205, 1209.)
The trial court relied upon the provision in subdivision (b)(3) of section 186.30, that the “crime” was “gang related,” to impose the registration requirement on defendant.[5] Section 186.30, subdivision (b)(3), does not offer any guidance to define those crimes that are “gang related.” The Attorney General submits that not just the crime, but the defendant’s “history of gang membership” and his “criminal record” may be considered to determine that a crime was gang related within the meaning of subdivision (b)(3) of section 186.30. Defendant claims that only the circumstances or “nature of the crime for which he is being sentenced” may prove that an offense is gang related under the statute.
In interpreting section 186.30, passed in March of 2000 as part of the voter initiative, Proposition 21, “ ‘we apply the same principles that govern statutory construction. (See Horwich v. Superior Court (1999) 21 Cal.4th 272, 276 [87 Cal.Rptr.2d 222, 980 P.2d 927] (Horwich).) Thus, [1] “we turn first to the language of the statute, giving the words their ordinary meaning.” (People v. Birkett (1999) 21 Cal.4th 226, 231 [87 Cal.Rptr.2d 205, 980 P.2d 912] (Birkett).) [2] The statutory language must also be construed in the context of the statute as a whole and the overall statutory scheme [in light of the electorate’s intent]. (Horwich, supra, 21 Cal.4th at p. 276, [280].) [3] When the language is ambiguous, “we refer to other indicia of the voters’ intent, particularly the analyses and arguments contained in the official ballot pamphlet.” (Birkett, supra, 21 Cal.4th at p. 243.)’ (People v. Rizo (2000) 22 Cal.4th 681, 685 [94 Cal.Rptr.2d 375, 996 P.2d 27] (Rizo).)” (Robert L. v. Superior Court, supra, 30 Cal.4th 894, 900-901.) Our fundamental task is to ascertain the intent of the electorate so as to effectuate the purpose of the law. (Day v. City of Fontana (2001) 25 Cal.4th 268, 272; Torres v. Automobile Club of So. California (1997) 15 Cal.4th 771, 777.)
Looking at the language of section 186.30, we find in the statute a clear expression of the voters’ “intent that the registration requirement ‘apply to any person convicted in a criminal court’ of certain offenses.” (People v. Bailey (2002) 101 Cal.App.4th 238, 243, italics added.) The statutory language focuses exclusively upon the “crime” committed, not the defendant’s personal history or associations. Only a conviction of the identified offense of participation in a criminal street gang (§ 186.22, subd. (a)), the finding of an enhancement for the commission of a crime for the benefit of, at the direction of, or in association with any criminal street gang (§186.22, subd. (b)(1)), or commission of another “gang related” crime, trigger the mandatory registration requirement of section 186.30. Nothing in the language of the statute extends the registration provisions to defendants who have not committed one of the enumerated offenses. As with other registration requirements—for example, for narcotics and sex offenders—section 186.30 specifies “those particular offenses for which it deemed registration appropriate.” (See People v. Brun (1989) 212 Cal.App.3d 951, 954.) And because registration is an onerous burden that may result in a separate misdemeanor offense for noncompliance, a registration requirement may not be imposed upon persons not specifically described in the statute. (See People v. Franklin (1999) 20 Cal.4th 249, 253; In re Bernardino S. (1992) 4 Cal.App.4th 613, 623; People v. Brun, supra, at p. 954.) This court can neither disregard the language of the statute which differentiates between particular offenses and confines the obligation to register to only designated violations, nor expand the scope of the statute to impose registration for convictions of crimes not listed or under conditions not specified. (See In re Luisa Z. (2000) 78 Cal.App.4th 978, 984; In re Bernardino S., supra, at pp. 623-624; People v. Brun, supra, at p. 954; People v. Tye (1984) 160 Cal.App.3d 796, 802-803.) “In the case of a voters’ initiative statute . . . we may not properly interpret the measure in a way that the electorate did not contemplate: the voters should get what they enacted, not more and not less.” (Hodges v. Superior Court (1999) 21 Cal.4th 109, 114.) “ ‘We must take the language . . . as it was passed into law, and must, . . . without doing violence to the language and spirit of the law, interpret it so as to harmonize and give effect to all its provisions.’ ” (Robert L. v. Superior Court, supra, 30 Cal.4th 894, 909, quoting from People v. Garcia (1999) 21 Cal.4th 1, 14, fn. omitted.) “If there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs.” (Day v. City of Fontana, supra, 25 Cal.4th 268, 272.)
In accordance with the unambiguous language of the statute, we conclude that a crime may not be found gang related within the meaning of section 186.30 based solely upon the defendant’s criminal history and gang affiliations. The crime itself must have some connection with the activities of a gang, which we conclude means a “criminal street gang” as defined elsewhere in Proposition 21, section 186.22, subdivisions (e) and (f).[6] We also conclude that a crime is “gang related” in this context when it was “committed, in the words” of subdivision (b)(1) of section 186.22, “ ‘for the benefit of, at the direction of, or in association with’ a street gang.” (People v. Gardeley (1996) 14 Cal.4th 605, 622, citation omitted; see also In re Eduardo C., supra, 90 Cal.App.4th 937, 943.)[7]
We do not conclude that a defendant’s personal affiliations and criminal record are without consequence in finding a “gang related” crime within the meaning of section 186.30. To the contrary, a defendant’s history of participation in gang activities or criminal offenses may prove that a crime not otherwise or intrinsically gang related nevertheless falls within the meaning of section 186.30. Thus, a crime committed by a defendant in association with other gang members or demonstrated to promote gang objectives may be gang related. However, the record must provide some evidentiary support, other than merely the defendant’s record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang.
Here, nothing in the record connected defendant’s conviction to gang activity. First, defendant’s commission of a probation violation through his association with a known gang member, while certainly gang related, was not a crime at all, and hence cannot serve as the basis for the registration order, as the Attorney General has acknowledged. Auto burglary is a crime, but not one necessarily gang related, and the circumstances of the offense as described in the record before us fail to connect the offense with defendant’s gang activities. While the probation report indicates that the auto burglary was committed by defendant and a companion, the accomplice is not identified as a gang member. Nor does the probation report give us any indication that this particular auto burglary, even if committed by someone identified as a “certified Sureno gang member,” was directed by, associated with, or benefited his criminal street gang.[8] Neither the investigating officer nor the probation officer even suggested that the auto burglary was other than a crime intended to benefit defendant personally. We agree with defendant that there is no evidentiary basis in the record to impose upon him the burden of gang offender registration pursuant to section 186.30. (See In re Eduardo C., supra, 90 Cal.App.4th 937, 943; People v. Tye, supra, 160 Cal.App.3d 796, 803.)