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Name: People v. Mesa
Case #: D056280
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 07/13/2010
Subsequent History: rev. granted 10/27/10 (S185688)

Because Penal Code section 186.22, subdivision (a) (crime of gang participation) involves distinct criminal objectives and different impacts from the underlying offense, punishment for both is not a violation of the proscription against multiple punishment under Penal Code section 654. Appellant, a gang member and convicted felon, challenged and then shot and wounded one victim on April 27, 2007; shot and wounded a separate victim two days later; and was found in possession of firearms and ammunition approximately a month later. A jury found him guilty of two counts of assault with a firearm with great bodily injury and firearm-use enhancements; felon in possession of ammunition and a firearm; and the crime of actively participating in a criminal street gang. As to the first assault, the jury also found a gang enhancement true. Appellant was sentenced to separate punishments for the one assault and the crime of gang participation, and on appeal, he challenged the sentences as violating Penal Code section 654. Disagreeing with People v. Sanchez (2009) 179 Cal.App.4th 1297 and finding People v. Herrera (1999) 70 Cal.App.4th 1456 more persuasive, the court rejected the argument. In enacting section 186.22, subdivision (a), the Legislature intended a separate crime, as opposed to a type of criminal culpability. Culpability under section 186.22, subdivision (a) is different than that of the felony murder rule as it does not depend solely on the commission of the underlying offense. Rather, liability for the gang participation depends on both the commission of the underlying offense and the separate act of participating in the gang. There are distinct objectives between the underlying crime and the gang participation. The former targets the individual victim whereas gang participation is intended to instill fear in the community by demonstrating how powerful the gang is, an intent that could be met by any number of different offenses.
Consecutive sentences for three convictions for felon in possession of a firearm that occurred on three separate occasions violated Penal Code section 654. The evidence showed that appellant had the same gun on all three occasions and there was no evidence that he ever lost possession of the weapon. Penal Code section 12021 is a general intent crime that is completed when the person takes possession of the firearm, absent a showing that he lost possession and then regained it. As such, it is a continuing offense which can be punished only once. But, the court rejected appellant’s argument that he could not be punished for both possession of the weapon and possession of the firearm when arrested because the evidence showed the ammunition and firearm were located in separate places. This established the crimes were distinct enough to permit separate punishment.