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Name: People v. Nunes, et al.
Case #: C060871
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 11/01/2011
Subsequent History: Rev. granted 2/15/12: S198392

Separate punishments may be imposed for active participation in a criminal street gang and the underlying felony that is used to prove the “felonious conduct” element of section 186.22, subdivision (a). Defendants were convicted of numerous offenses after an attack on several Amtrak engineers. The prosecution presented expert evidence that the defendants were gang members. One of the contentions on appeal was that Penal Code section 654 barred separate punishment for criminal street gang activity under section 186.22, subdivision (a) in addition to the underlying felonies used to prove the “felonious conduct” element of the criminal street gang offense. The court stated that even where two offenses are based on the same act, section 654 may not prohibit multiple punishment. Under section 186.22, subdivision (a), it is unlawful to participate in a criminal street gang with knowledge that the members of the gang engage in a pattern of criminal conduct and to willfully promote or assist in any felonious criminal activity of the gang. When the two offenses are substantive participation in criminal street gang activity that is also the basis for the underlying felony for the gang enhancement, “two distinct criminal acts are involved.” “This is so because the charge of criminal street gang activity is not based only on the underlying felony that serves as the ‘felonious criminal conduct’ the statute requires, but is also based on the defendant’s ‘active[] participat[ion] in [the] criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity.” Further, defendants’ intent and objectives were different in attacking the train engineer and in participating in a criminal street gang. Thus, separate punishment was appropriate.