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Name: People v. Mesa
Case #: S185688
Court: CA Supreme Court
District CalSup
Opinion Date: 06/04/2012
Summary

Penal Code section 654 bars imposition of sentence for the crime of actively participating in a gang, which requires commission of an underlying felony, and sentence for the underlying felony. Appellant, who shot two victims, was convicted of and punished for assault with a firearm, possession of a firearm by a felon, and actively participating in a criminal street gang (Pen. Code, § 186.22, subd. (a)). An element of section 186.22, subdivision (a) requires that the accused willfully promotes, furthers, or assists in any felonious criminal conduct by members of the gang. Here, the jury was instructed that the term felonious criminal conduct means committing or attempting to commit assault with a firearm or possessing a firearm by a felon. The only acts shown by the evidence for each incident were that appellant possessed a firearm and shot two victims. Accordingly, for each shooting incident, the sentence imposed for the gang crime violated section 654 because it punished appellant a second time for the underlying offense. [Disapproving People v. Herrera (1999) 70 Cal.App.4th 1456.] The court rejected the Attorney General’s contention that this finding would eviscerate the substantive offense of gang participation, noting that it simply limited the punishment in a situation such as the one presented here. The commission of a crime for the benefit of a gang may still be punished. For example, in Penal Code section 186.22, subdivision (b)(1), the Legislature has made gang participation separately punishable from the underlying offense.