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Name: People v. Schoppe-Rico
Case #: A104363
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 06/29/2006
Summary

The street gang firearm possession statutes (Pen. Code, § 12025, subd. (b)(3) [concealed firearm]; and § 12031, subd. (a)(2)(C) [loaded firearm]) make the proscribed firearm a felony when the defendant is an active participant in a criminal street gang. These statutes do not require proof that the charged firearm possession was connected with the underlying gang participation. Appellant was convicted of, inter alia, carrying a loaded and concealed firearm while an active participant in a gang. On appeal, he argued that the statutes require proof the firearm offenses were themselves committed in connection with a his active participation in the gang. The Court of Appeal disagreed, finding appellant was trying to add another element, a “gang connection element,” to the offenses. To construe the statutes as appellant interprets them would not only strain their language, but also make them almost superfluous because they would be subsumed under the firearm enhancement set forth in Penal Code section 12021.5, subdivision (a), except in situations where the underlying offense is treated as a misdemeanor.