The offense of active gang participation (Pen. Code, sec. 186.22, subd. (a)) does not require that the felonious criminal conduct referred to in the statute be gang-related. Twin brothers and their cousin acted in concert to rape a female acquaintance. The three young men were members of the same gang. On appeal, they alleged there was insufficient evidence to support their convictions for the substantive gang offense as well as gang enhancements alleged in conjunction with the sex offenses. As to the gang offense, appellants claimed there was no evidence the felonious conduct they promoted was gang-related. The Supreme Court considered the question of whether the substantive gang offense includes a requirement that the “felonious criminal conduct” that is promoted, furthered, or assisted be gang related. Based on the plain language of section 186.22, subdivision (a), the court concluded it does not. All that is required is the promotion, furtherance or assistance in any felonious criminal conduct by gang members. Had the Legislature wanted to limit the nature of the criminal conduct, it could have done so, as it did in subdivision (b) of the same statute. And while the statute is unambiguous, the court noted that the legislative history supports this conclusion. The original bill contained a “gang-related-activity” requirement, but it was deleted from the final version.
The intent element of the gang enhancement (Pen. Code, sec. 186.22, subd. (b)) requires “the specific intent to promote, further, or assist in any criminal conduct by gang members” including the crimes alleged. As to the gang enhancement, one appellant argued the enhancement requires proof of specific intent to promote, further, or assist other criminal conduct by gang members, apart from the current offenses. (See e.g., Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099.) Resolving a split among the federal and state appellate courts, the high court held criminal conduct by gang members, including the charged crimes, suffices. Again, the court relied on the plain language of the statute, but noted that the legislative history dispels the argument because that interpretation was specifically proposed in one version of the bills but subsequently deleted.
There was sufficient evidence the offenses were committed “for the benefit of, at the direction of, or in association with … [the] gang.” Appellants also claimed there was insufficient evidence the sex offenses were committed for the benefit of, at the direction of, or in association with the gang. The court found the offenses were committed for both the benefit of, and in association with, the gang. The men took turns holding the victim down while another raped her. They benefited from committing the crimes together because they could count on each other not to snitch, and also on the gang’s reputation to threaten the victim not to contact police. The dissent disagreed as to this conclusion. As to this crime, the appellants were brought together by living arrangements (they were roommates) and family ties. They were socializing with the victim and her friends, as they had done in the past. The facts “reflect a disturbing trend in society” where a group of young men, such as members of a sports team or a fraternity, “sexually assault a young female acquaintance who mistakenly believe she is among friends” for their amusement or to look cool in front of their friends.