A gang member who commits a felony while acting alone does not violate Penal Code section 186.22, subdivision (a); that statute requires at least two perpetrators whose felonious conduct benefits the gang. Defendant, a Norteno gang member, attempted a robbery. Among other offenses, he was convicted of violating section 186.22, subdivision (a). The Court of Appeal reversed and the prosecution’s petition for review was granted. Held: Affirmed (plurality opinion). Section 186.22, subdivision (a) “speaks of criminal conduct by members of that gang.” Thus, a defendant must willfully advance or contribute to the commission of felonious conduct by members of his gang. The plain meaning of the statute requires that the crime be committed by at least two gang members, one of whom may be the defendant if he is a gang member. This interpretation avoids “any potential due process concerns that might be raised by punishing mere gang membership” by requiring that a defendant commit the underlying felony with at least one other gang member. (Citing Scales v. United States (1961) 367 U.S. 203.) Section 186.22, subdivision (a) reflects the Legislature’s intent to punish participants who commit felonious conduct together with gang members. In his concurring opinion, Justice Baxter joined in the opinion based on the plain meaning of the statute, finding no reason to consider the constitutional implications of a contrary interpretation.

[Editor’s Note: In Marks v. United States (1977) 430 U.S. 188, 193, the Supreme Court discussed the way in which to interpret the holding of a U.S.S.C. case where there is no majority supporting the rationale of any opinion: “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.”]