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Name: People v. Castenada
Case #: S069237
Court: CA Supreme Court
District CalSup
Opinion Date: 07/06/2000
Subsequent History: None

The Court of Appeal’s decision in People v. Green (1991) 227 Cal.App.3d 692 was incorrect in construing the “actively participates” element of Penal Code section 182.22, subdivision (e), as requiring that a substantial amount of the defendant’s time and efforts be devoted to street gang activities based on due process considerations of providing “fair warning” and preventing arbitrary law enforcement. “Fair warning” does not require that construction, because the statute reaches aiders and abettors of the gang activity, and that is more than nominal or passive involvement. Moreover, the requirements of criminal knowledge, willful promotion of a felony, and active participation in a criminal street gang make it clear the range of conduct prohibited. The evidence here showed appellant’s involvement with the Goldenwest gang to be more than nominal or passive and then satisfied Penal Code section 182.22, subdivision (e). Here, in the 14 months preceding the crimes, the police observed appellant on seven occasions with gang members. On four of these occasions he was given written notice that Goldenwest was a criminal street gang under the STEP Act. On those occasions appellant bragged that he “kicked back” with gang members, and expert testimony established that “kicking back” refers to being associated with or a member of a gang. On the date of the crimes here, appellant was armed with a handgun and in the company of two other gang members when he pursued two victims who were impinging on Goldenwest territory, demanded money, forcibly took a watch and tried to rip a gold chain off one of the victim’s neck. Expert testimony established that this crime was typical of those committed by Goldenwest gang members. To prove that a defendant “actively participates” in a gang, as stated in Penal Code section 186.22, subdivision (a), a provision of the California Street Terrorism Enforcement and Protection Act of 1988 (STEP Act), it is sufficient if the evidence establishes that the defendant’s involvement with the gang is more than nominal or passive. The Court of Appeal’s decision in People v. Green (1991) 227 Cal.App.3d 692 was incorrect in construing section 182.22, subdivision (e), as including the additional requirement that the defendant devote “all or a substantial part of his time and efforts to the criminal street gang.” The inclusion of this requirement was based on an erroneous reading of Scales v. United States (1961) 367 U.S. 203. In Scales, the due process requirement of personal guilt was satisfied by requiring proof of a defendant’s active membership in a subversive organization with knowledge of and an intent to further its goals. Section 186.22, subdivision (a), limits liability to those who promote, further or assist a specific felony committed by gang members and who know of the gang’s pattern of criminal gang activity. An individual who violates section 186.22, subdivision (a), has necessarily aided and abetted a separate felony offense committed by gang members. The statute therefore does not impose criminal liability for lawful association, but for aiding and abetting the gang.