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Name: People v. Infante
Case #: S206084
Court: CA Supreme Court
District CalSup
Opinion Date: 02/20/2014

Possession of a firearm by a felon qualifies as “felonious criminal conduct” within the meaning of Penal Code section 186.22, subdivision (a) so as to elevate to felonies the misdemeanor offenses of carrying that concealed firearm and carrying that loaded firearm in public. Infante was pulled over by police officers, who found a loaded revolver and a loaded semiautomatic pistol in the vehicle. Based on evidence that Infante was an active member of the Headhunters criminal street gang, he was charged with, inter alia, carrying a concealed firearm in a vehicle by a member of a street gang (former Pen. Code, § 12025, subds. (a)(1), (b)(3); count 1), unlawfully carrying a loaded firearm in public by a member of a street gang (former Pen. Code, § 12031, subd. (a)(1), (2)(C); count 2), and possession of a firearm by a felon (former Pen. Code, § 12021, subd. (a)(1); count 3). The trial court dismissed counts 1 and 2, relying on In re Jorge P. (2011) 197 Cal.App.4th 628. Infante entered into a plea bargain. The prosecutor appealed the order dismissing counts 1 and 2. The Court of Appeal reversed, disagreeing with Jorge P. The California Supreme Court granted review to resolve the conflict. Held: Affirmed. The crimes of carrying a concealed firearm and unlawfully carrying a loaded firearm in public are normally misdemeanors but become felonies when committed by an active participant in a criminal street gang as defined by section 186.22(a). An element of section 186.22(a) is that the gang member must have willfully promoted or assisted in felonious criminal conduct by members of the gang. Possession of a firearm by a felon, a felony, satisfies the “felonious criminal conduct” element of section 186.22(a). The court rejected Infante’s argument, based on Jorge P., that the felonious conduct must be separate, distinct, and different from the conduct supporting the misdemeanor gun offense. People v. Lamas (2007) 42 Cal.4th 516 did not establish such a requirement and is distinguishable because the felony status of the crime of felon in possession of a firearm does not depend on the substantive gang offense or on the alternate penalty provisions of section 12025(b)(3) or section 12031(a)(2)(C).