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Name: People v. Johnson
Case #: F066627
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 09/11/2014

Evidence that a gang member possessed a loaded gun around other gang members is insufficient, by itself, to prove he was promoting, furthering, or assisting other members’ felonious criminal conduct (Pen. Code, § 186.22, subd. (a)). Officers found a loaded .22 on the ground near Johnson and two other Merced Gangster Crips. The gun had Johnson’s DNA on it. Weeks later, officers conducted a parole search of Johnson’s residence and found a loaded .357 in the closet. For the .22 incident, Johnson was charged with: felony possession of a firearm, felony possession of ammunition, and active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)). He was also charged with the same three crimes for the .357 incident and a jury convicted him of all six counts. He appealed the two gang convictions. Held: Reversed. One of the elements of active participation in a criminal street gang is the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang. (Pen. Code, § 186.22, subd. (a).) The felonious criminal conduct must be committed by at least two gang members. (People v. Rodriguez (2012) 55 Cal.4th 1125.) Here, there was insufficient evidence to satisfy this element for either conviction. With respect to the first incident, there was no evidence that Johnson’s felony conduct (possession of the loaded .22) was committed in tandem with another gang member. The record showed that Johnson was already in possession of the firearm when he decided to escort other gang members to a nightclub. There was no evidence that other gang members were involved in the acquisition of the firearm, that they exercised dominion or control over the gun, or that they handled the gun. With respect to the second incident, the only evidence of felonious conduct that the prosecution admitted was Johnson’s possession of the loaded .357. Again, the prosecution failed to offer any evidence showing how another gang member was engaged in that felonious conduct with him.