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Name: In re Jorge P.
Case #: F060915
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 07/14/2011

In order to elevate the offense of carrying a loaded firearm to a felony under Penal Code section 12031, subdivision (a)(2)(C), there must be proof of felonious “conduct” separate from the act supporting a section 12031, subdivision (a)(1) allegation./ Appellant was in a vehicle with several other gang members. When police stopped the car and approached, they saw a gun in the car. Appellant challenged the juvenile court’s felony finding based on section 12031, subdivision (a)(2), which elevates misdemeanor possession of a loaded gun to a felony where the defendant is an active participant in a criminal street gang. Section 12031, subdivision (a)(2)(C) applies only after a section 186.22, subdivision (a) (the criminal street gang statute) finding has already been satisfied by conduct distinct from the misdemeanor offense of carrying a loaded weapon in violation of section 12031, subdivision (a)(1). The fact the minor was also charged with being a minor in possession of a concealed weapon, a wobbler, under section 12101, subdivision (a)(1) does not change the analysis. The prosecution must still prove felonious conduct independent from the acts which underlie the section 12031, subdivision (a)(1) offense. Remanded to allow the court to declare whether the section 12101, subdivision (a) offense was a felony or misdemeanor.