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Name: Lopez v. Superior Court
Case #: G039025
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 02/29/2008
Summary

A gang enhancement was not properly charged where the underlying contempt charge was based on the same gang-related conduct. Lopez was arrested for being in the company of Santa Nita criminal street gang (SNG) members after 10:00 p.m. with open containers of alcohol in violation of a court injunction to abate the public nuisance of SNG conduct. He was charged with three counts of contempt, and each count carried an allegation that it was committed for the benefit of a criminal street gang in violation of Penal Code section 186.22, subdivision (d). Lopez demurred to the indictment because the gang-related misconduct was already the basis for the initial issuance of the injunction, and therefore it should not have been the basis to elevate the crime to a “wobbler” from a misdemeanor. The appellate court agreed and granted Lopez’s writ petition. Penal Code section 186.22(d) permits courts to impose felony punishment for a misdemeanor committed with a gang-related purpose, not to bootstrap a criminal contempt charge. The violation of the injunction could not be used twice to elevate the same gang related conduct to a felony. The crime of drinking with gang members only became a crime because it was gang-related. The conduct was a single fact which could not be alleged twice to elevate the crime.