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Name: People v. Valenzuela
Case #: B269027
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 11/14/2016
Summary

A felony criminal street gang conviction (Pen. Code, § 186.22, subd. (a)), which requires a person to promote or further felonious gang conduct, survives even though the felony conviction that is based upon the same conduct is reduced to a misdemeanor. In 2013, defendant stole a $200 bicycle “from the person” of the victim and was convicted of grand theft (Pen. Code, § 487, subd. (c)) and gang activity (Pen. Code, § 186.22, subd. (a)). A gang enhancement was found true (Pen. Code, § 186.22, subd. (b)). After the passage of Proposition 47, defendant petitioned to reclassify his theft conviction as a misdemeanor. Relief was granted as to the grand theft count (which precluded the attachment of the gang enhancement) but denied as to the substantive gang crime. On appeal, defendant argued that his conviction for the substantive gang offense was invalid after the theft offense became a misdemeanor. Held: Affirmed. The gravamen of the substantive gang offense is active participation in a criminal street gang. Unlike the gang enhancement (Pen. Code, § 186.22, subd. (b)(1)) which requires a felony conviction, the substantive gang offense requires participation in the “felonious criminal conduct” of at least one other gang member. It does not require that anyone sustain a conviction for that conduct. “When defendant stole the bicycle, he engaged in felonious criminal conduct.” Thus, it is irrelevant that defendant’s grand theft conviction was subsequently reduced to a misdemeanor.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B269027.PDF