There was sufficient evidence to support the gang participation conviction where evidence showed that the defendant promoted and assisted in felonious conduct by gang members. Appellant was convicted of two counts of robbery as well as the substantive offense of gang participation. He was the perpetrator of the robberies, not an aider and abettor. On appeal, citing People v. Castaneda (2000) 23 Cal.4th 743, he argued that perpetration failed to satisfy the “promote/further/assist” element of the gang offense. The appellate court rejected the argument, finding that the court has previously held in People v. Ngoun (2001) 88 Cal.App.4th 432, that the element can also be satisfied by evidence that the defendant was the perpetrator of the felony.
Where proof of robbery was a necessary element of gang participation offense, Penal Code section 654 proscribed punishment on both the robbery and gang offense. Appellant also argued that in light of the terms imposed for robbery, the term imposed for gang participation should have been stayed under section 654. The appellate court agreed and stayed the term for the gang participation. The robberies, even if they were not gang-motivated, were necessary to satisfy an element of the gang participation charge. By definition, appellant could not be punished separately for gang participation.