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Name: People v. Lozano
Case #: F032226
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 01/29/2001
Subsequent History: Review denied 4/18/01 and Reporter of Decisions directed not to publish this opinion in the Official Reports

Appellant was convicted of carrying a loaded firearm while an active member of a criminal street gang, in violation of Penal Code section 12031, subdivision (a)(2)(C). An allegation pursuant to section 186.22, subdivision (b), for committing the offense with the specific intent to promote the gang was also found to be true, and an additional two-year sentence was imposed. The appellate court here held that the two-year enhancement violated the proscription against double punishment in section 654. To be found guilty of section 12031 and section 186.22, subdivision (b), appellant had to be acting as a gang member or in furtherance of the gang. The conduct of having a loaded firearm while promoting felonious gang conduct had already elevated the offense to a felony and qualified the conduct for enhanced punishment. When a violation of a special statute will result in a violation of a general statute, the special statute controls. Therefore, the crime and enhancement here are the type of circumstances where section 654 applied, and the two-year enhancement was stricken.