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Name: People v. Rodriguez
Case #: C060227
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 09/20/2010
Subsequent History: review granted 1/12/11 (S187680)

The substantive criminal street gang offense (Pen. Code, § 186.22, subd. (a)) does not apply to an offense committed by a member of a criminal street gang acting alone. Appellant demanded money from the victim and attempted to beat him up. At trial on charges of attempted second degree robbery with a gang enhancement and active participation in a criminal street gang, an expert testified as to the Norteño gang and opined that appellant was a member of the gang and that the robbery was done for the benefit of the gang. Appellant was convicted of the two substantive offenses and the enhancement. The trial court dismissed the enhancement for lack of supporting evidence that there was a connection between the robbery and the activities of the gang. On appeal, appellant argued that, likewise, there was insufficient evidence to support the substantive gang offense and the court agreed. Section 186.22, subdivision (a), the substantive offense, has three elements: (1) active participation in the gang, (2) knowledge that the gang’s members engage in a pattern of criminal activity, (3) evidence that the person promotes, furthers, or assists in any felonious criminal conduct by members of that gang. Under the third element, liability is limited to those who assist a specific felony committed by gang members. Thus, a person who violates subdivision (a) has also aided and abetted a separate felony offense committed by gang members. (Compare CALCRIM No. 1400.) To aid and abet in the commission of an offense, requires that there be more than one participant in the offense. Because the evidence in this case indicated that appellant was the sole participant in the attempted robbery, there was insufficient evidence to support the conviction. (Following People v. Castenada (2000) 23 Cal.4th 743, and disagreeing with People v. Salcido (2007) 149 Cal.App.4th 356.)