The substantive criminal street gang offense of Penal Code section 186.22, subdivision (a) applies in circumstances where an active gang participant acts alone. Gonzales, a Big Stanton gang member, was encountered parked in an area claimed by Big Stanton and a rival gang, and in possession of a loaded handgun and six baggies of methamphetamine. There was sufficient evidence to find him an active gang member, or that he was promoting, furthering or assisting in felonious activity by the gang, based on his actions alone. The expert’s opinion was supported by Gonzales’ statement that he bought the gun because the rival gang, 18th Street, was out to get Big Stanton and it was “protection for us.” His possession of the gun was gang related because it was purchased for protection from a rival gang and he was carrying it in an area that was part of a turf war with that rival. The offense does not require that there be aiding and abetting of a felony committed by other gang members as suggested in dictum from People v. Castenada (2000) 23 Cal.4th 743, 749. The Legislative intent was to punish any felonious criminal conduct by a gang member. An individual member is able to promote and further his own felonious criminal intent. [Editor’s note: Review of this issue has been granted in People v. Rodriguez (2010) 188 Cal.App.4th 722, rev. granted 1/12/2011 (S187680).]
The same analysis applies to the enhancement under section 186.22, subdivision (b)(1). By parity of reasoning, the nearly identical wording about “criminal conduct by gang members” in subdivision (b)(1) can mean the defendant acting alone. [Editor’s note: Review of this subdivision has also been addressed by the parties in People v. Rodriguez.]
There was no abuse of discretion in the trial court’s denial of a motion for new trial when there was a careful independent review of the evidence and findings were made on the record. The jury acquitted Gonzales of possession of the methamphetamine for sale and instead found him guilty of simple possession. He argued he was entitled to a new trial because the verdict undermined the gang expert’s opinion as to his active gang involvement based on possession for sale. However, the expert’s opinion was not premised solely on the possession of methamphetamine for sale, but also on his possession of the gun to promote, further, or assist in the gang member’s own criminal conduct.