Subdivision (a) of section 186.22 defines a stand-alone substantive crime which penalizes committing or aiding and abetting a felony while being an active participant in a gang:
(a) 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.
The active-participation offense has essentially three elements, although each of those elements, in turn, can be broken down into additional elements. The three elements are:
- Active participation in a criminal street gang;
- When the defendant participated in the gang, he/she knew that members of the gang engage in, or have engaged in, a pattern of criminal gang activity.
- The defendant willfully assisted, furthered, or promoted a felony by members of the gang by
- directly and actively committing a felony; or
- aiding and abetting a felony.
(Pen. Code § 186.22, subd. (1); CALCRIM no. 1400.) The terms "criminal street gang" and "pattern of criminal gang activity " are discussed above in the section on the Definition of a Criminal Street Gang. Other aspects of the crime, including the meaning of "active participation" and the requirement of a current felony, are discussed below.
The parameters of "active participation" are established by both case law and statute:
- More than nominal or passive participation required. "Active participation" means "taking part in" something "in a manner that is not passive." It is involvement that is "more than nominal or passive." (People v. Castenada (2000) 23 Cal.4th 743, 747.) Must have knowledge of the gang's pattern of criminal activity. (In re Jose P. (2003) 106 Cal.App.4th 458.)
- Leadership role not required. The prosecution need not show that the defendant held a leadership role in the gang. (Castenada, 23 Cal.4th at 750.)
- Devotion of all or substantial part of time or efforts to gang not required: "[I]t is not necessary for the prosecution to prove that the person devotes all, or a substantial part, of his or her time or efforts to the criminal street gang." (§ 186.22, subd. (i).)
- Gang membership not required. (§ 186.22, subd. (i) ("nor is it necessary to prove that the person is a member of the criminal street gang")); see also In re Jose P. (2003) 106 Cal.App.4th 458, 466; People v. Valdez (1997) 58 Cal.App.4th 494, 505.)
- Participation must be at or near time of crime. "It is not enough that a defendant have actively participated in a criminal street gang at any point in time, however. A defendant's active participation must be shown at or reasonably near the time of the crime." (People v. Garcia (2007) 153 Cal.App.4th 1499, 1509.)
- D's participation more than nominal where in 14 months before offense D seen on seven occasions in the company of known gang members. On four of those occasions, cops gave him written notice that group was a gang under the STEP Act. D bragged to the officers that he “kicked back” with the gang. On date of crimes, D was armed with a handgun and committed offense typical of the gang. (People v. Castenada (2000) 23 Cal.4th 743, 752-753.)
- Evidence of active participation sufficient where D had gang tattoo over eyebrow and on the back of his head, grew up in East Los Angeles, admitted being a member of gang, gave a gang moniker, crime committed was one of the gang's primary activities, and was committed in association with another gang member, despite gang detective not knowing of D before the crime and despite D's claim he had left the gang 10 years earlier. (People v. Martinez (2008) 158 Cal.App.4th 1324, 1331.)
- Where D had extensive knowledge of gang's current activities, evidence of active participation sufficient, despite D having no gang-related tattoos, not wearing gang clothing or flashing gang signs, and D's name had not come up as an active gang member in interviews with gang members, nor had D been seen in the presence of other gang members for 5 years. (People v. Garcia (2007) 153 Cal.App.4th 1499, 1509-1510.)
- Despite removal of a gang tattoo on his hand and the D's claim he had quit the gang, the evidence was sufficient to support the active participant element where there was no question D had been a member of the gang at an earlier time, at time of offense D was in "good standing" with the gang, D maintained contacts within the gang, D knew about a specific gang rivalry, and D told officer that he possessed gun because the rival gang was "out to get us." (People v. Gonzalez (2011) 199 Cal.App.4th 219, 227-228.)
Felonious Criminal Conduct
The defendant must assist, further, or promote “felonious criminal conduct.” This latter element is a stand-alone element, which is not part of the definitions of a criminal street gang.
- Any felony. The felony need not be one of the predicate offenses listed in subdivision (e). (People v. Salcido (2007) 149 Cal.App.4th 356, 368-369.)
- The felonious criminal conduct need not be "gang-related". (People v. Albillar (2010) 51 Cal.4th 47, 55-59 (Briefs here; court of appeal opinion here); see also People v. Gonzalez (2011) 199 Cal.App.4th 219, 229 [following Albillar].)
- Direct Perpetrator or Aider & Abettor.
- The "felonious criminal conduct" element can be satisfied where the defendant is either the direct perpetrator or an aider and abettor. (People v. Ngoun (2001) 88 Cal.App.4th 432, 436; see also People v. Rodriguez (2012) 55 Cal.4th 1125, 1136-1137.)
- One perpetrator acting alone is not sufficient. The "felonious criminal conduct" must involve "at least two gang members, one of whom can include the defendant if he [or she] is a gang member." (People v. Rodriguez (2012) 55 Cal.4th 1125, 1132.) The Court disapproved of People v. Salcido (2007) 149 Cal.App.4th 356 and People v. Sanchez (2009) 179 Cal.App.4th 1297 to the extent that they suggested otherwise.
- Firearm Violations Constituting Felonious Criminal Conduct: Certain normally-misdemeanor firearm offenses are elevated to felonies when the defendant is an active participant in a criminal street gang, within the meaning of subdivision (a) of section 186.22. (Pen. Code § 12025(b)(3) (carrying a concealed weapon]; § 25850(c)(3) (former § 12031(a)(2)(C)) [carrying a loaded firearm in public].) To establish that these firearm offenses are felonies, the prosecution must satisfy all of the elements of section 186.22(a). (People v. Robles (2000) 23 Cal.4th 1106, 1115.) The interplay between these firearm offenses and section 186.22(a) is complex and some attention must be paid to whether ostensibly misdemeanor conduct is being used to establish the felonious criminal conduct:
- Misdemeanors elevated to a felony due to active participation in a criminal street gang cannot constitute the felonious criminal conduct element of a conviction under section 186.22(a). In People v. Lamas (2007) 42 Cal.4th 516, 524, the Court held that due process was violated by basing a section 186.22(a) gang offense on misdemeanor weapons offenses (§ 12025(b)(3) (carrying a concealed weapon) and former § 12031(a)(2)(C) (carrying a loaded firearm in public)), which had been elevated to felonies by virtue of gang participation.
- A felony adjudication or conviction (in this case for being a minor in possession of a firearm under section 12101(a)(1)) cannot support a gang allegation elevating a carrying-a-loaded-firearm offense to a felony under former section 12031(a)(2)(C) (now 25850(c)(3)). This is "because the underlying conduct is the same conduct underlying the section 12031(a)(1) offense, which cannot be used under section 12031(a)(2)(C) to elevate the 12031(a)(1) offense to a felony under Lamas. (In re Jorge P. (2011) 197 Cal.App.4th 628.)
- Possible Sentence. A violation of the substantive gang offense (subd. (a)) is a wobbler punishable by up to a year in county jail or 16 months or 2 years or three years in state prison.
- Not a county-jail felony under 2011 Realignment bills. The statute expressly states that the felony-length term of imprisonment shall be served "in state prison." (§ 186.22(a).) In addition, a gang offense under 186.22 is a serious felony (see E below) and serious felonies are not county jail felonies. (§ 1170(h)(3).) Accordingly, a substantive subdivision (a) offense is not a county jail felony under the 2011 Realignment legislation. (In the original realignment bill (AB 109), the Legislature amended subdivision (a) of section 186.22, deleting the reference to "state prison" and stating that the imprisonment would be "pursuant to subdivision (h) of Section 1170," the new subdivision creating county jail felonies. (Stats.2011, c. 15 (A.B.109), §§ 275, 276.) However, in a cleanup bill (AB 117), the Legislature deleted the reference to 1170(h) and restored the language stating that the felony-length imprisonment would be in "state prison." (Stats.2011, c. 39 (A.B.117), §§ 6, 7.))
- Multiple Punishment (Section 654.)
- On June 4, 2012, the California Supreme Court issued its decision in People v. Mesa (2012) 54 Cal.4th 191, resolving lingering conflicts over how Penal Code section 654's bar against multiple punishment applies when one of the convictions is for active gang participation, a violation of subdivision (a) of section 186.22. Disapproving of People v. Herrera (1999) 70 Cal.App.4th 1456, the Court held that section 654 barred multiple punishment for a single act that resulted in multiple convictions for assault and gang participation. "In each of two separate incidents, defendant Tommy Mesa, ... shot a victim and was convicted of and punished for assault with a firearm, possession of a firearm by a felon, and actively participating in a criminal street gang." "The only acts shown by the evidence regarding each incident were that defendant possessed the firearm and shot each victim. These two acts resulted in three separate punishments for assault with a firearm, for possession of a firearm, and for the gang crime." The Supreme Court held that "punishing defendant for assault with a firearm and for possession of a firearm by a felon precludes additional punishment for actively participating in a criminal street gang."
- The following pre-Mesa cases also held that section 654 barred multiple punishment: People v. Vu (2006) 143 Cal.App.4th 1009 (gang participation and conspiracy to commit murder; 186.22 punishment must be stayed); People v. Sanchez (2009) 179 Cal.App.4th 1297 (criticizing Herrera and holding 186.22 punishment must be stayed where defendant convicted of gang participation and robbery); People v. Hunt (2011) 196 Cal.App.4th 811, 824 (section 654 required a stay of the sentence on the subdivision (a) gang offense, because it was based on the same intent as the robbery).
- Limitation in subdivision (e)(2) of section 12022.53 does not bar imposition of sentences for both 186.22(a) substantive offense and a 12022.53 enhancement to a robbery conviction. The limitation only applies to enhancements and subdivision (a) of section 186.22 is an offense, not an enhancement. (People v. Hunt (2011) 196 Cal.App.4th 811, 822-824.)
- Serious Felony. A felony conviction under section 186.22(a) is a serious felony. (See Pen. Code § 1192.7(c)(28) (serious felonies include "any felony offense, which would also constitute a felony violation of Section 186.22".)
A defendant may be convicted of conspiracy to actively participate in a criminal street gang in violation of Penal Code section 186.22, subdivision (a). (People v. Johnson (2013) 57 Cal.4th 250, 267.)