Skip to content
Name: People v. Infante
Case #: G046177
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 10/02/2012
Subsequent History: Review granted 1/16/12: S206084

Gang member’s possession of a loaded firearm can prove the “felonious conduct” required for active gang participation where the possession is independently punishable as a felony. Defendant was charged with various firearm possession offenses and active gang participation (Pen. Code, § 186.22, subd. (a)). Relying upon the Fifth District’s opinion in In re Jorge P. (2011) 197 Cal.App.4th 628, defendant sought dismissal of the felony charges of possession of a concealed firearm in a motor vehicle by a gang member (former Pen. Code, § 12025, subds. (a)(1), (b)(3)) and possession of a loaded firearm in public by a gang member (former Pen. Code, § 12031, subds. (a)(1), (2)(C)). The motion was granted and the prosecution appealed. Held: Reversed. Violations of sections 12025 and 12031 may be elevated from misdemeanors to felonies if the prosecution first proves that the defendant violated section 186.22, subdivision (a). These misdemeanor offenses, however, cannot serve as the felonious criminal conduct necessary to prove a violation of section 186.22, subdivision (a). In Jorge P., the court interpreted language in People v. Lamas (2007) 42 Cal.4th 516 to mean that even if the possession of the firearm is punishable as a felony under some other statute, that felonious criminal conduct is not distinct from the conduct involved in the otherwise misdemeanor possession of the same firearm and under these circumstances the misdemeanor offenses may not be elevated to felonies. Disagreeing with Jorge P., the court held that when possession of a firearm is independently punishable as a felony under another penal statute, that possession may be used to prove the felonious criminal conduct element of section 186.22, subdivision (a). Here, the defendant’s possession of the firearm was independently punishable as a felony because he was a felon in possession of a firearm (former Pen. Code, § 12021, subd. (a)(1)). As a result, there was sufficient evidence of a section 186.22, subdivision (a) violation and sufficient evidence to charge the otherwise misdemeanor firearm possession offenses as felonies.