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Name: People v. Lamas
Case #: S145231
Court: CA Supreme Court
District CalSup
Opinion Date: 10/25/2007

There was prejudicial instructional error where the jury was only required to find that defendant committed a misdemeanor in order to find him guilty of Penal Code section 12031, subdivision (a)(2)(C). Penal Code section 12031(a)(2)(C) elevates a misdemeanor offense of carrying a loaded firearm in public to a felony if it is committed by an active participant in a street gang as defined by section 186.22, subdivision (a). In People v. Robles, the California Supreme Court interpreted the phrase “active participant in a criminal street gang as defined by Penal Code section 186.22” in section 12031, subdivision (a)(2)(C) to mean that carrying a loaded firearm in public becomes a felony under section 12031(a)(2)(C) when a defendant satisfies the elements of the offense described in section 186.22(a). In this case, the Court further considered the interplay between those two sections, holding that in order to establish the elements of section 186.22, the prosecution must prove that the charged gang member willfully promoted, furthered, or assisted members of his gang in felonious criminal conduct distinct from his otherwise misdemeanor conduct of carrying a loaded firearm in public or a concealed weapon on his person. This conclusion applies both to the substantive charge of a violation of section 186.22(a) and to the gun offenses that elevate to felonies upon proof that the defendant satisfied the Robles requirements. Therefore, the trial court here committed prejudicial error when it instructed the jury that felonious criminal conduct includes carrying a loaded firearm in a public place by a gang member. The instruction removed an essential element from the offense because it required the jury to find only that defendant committed or aided and abetted a gang member in committing a misdemeanor, rather than that the defendant had engaged in felonious conduct. The error was prejudicial, and reversal was required.