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Name: People v. Anguiano
Case #: D058578
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 09/25/2012
Subsequent History: Review granted, depublished, and transferred

Gang member’s possession of drugs for personal use while alone was not street terrorism (Pen. Code, § 186.22, subd. (a)). Anguiano was sitting alone on a porch when he noticed police officers approaching him. He attempted to flee and threw drugs over a fence. It was undisputed that Anguiano was a gang member, but was alone at the time, and that his possession for personal use of controlled substances was not gang related. He was convicted of possession of controlled substances, resisting arrest, and street terrorism. The street terrorism conviction was based on his possession for personal use of heroin and methamphetamine and resisting an officer. On appeal, Anguiano argued that there was insufficient evidence to support his conviction for street terrorism. The appellate court agreed and reversed. In enacting section 186.22, subdivision (a), the Legislature did not intend to make it an additional separate crime for a defendant to engage in felonious conduct that is already criminalized and punishable simply because the defendant is a gang member, where the conduct at issue is neither gang related nor committed in concert with other gang members. Although Anguiano may have been a gang member and may have had knowledge of the purpose of the gang, his possession for personal use of drugs while alone on his porch cannot be deemed to constitute promoting gang activity within the meaning of section 186.22, subdivision (a). His conduct in resisting an officer could not be the “felonious criminal conduct” supporting a conviction for street terrorism because the jury convicted him of a lessor included misdemeanor offense.