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Name: People v. Velasco
Case #: D066979
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 03/13/2015

A conviction for participating in a criminal street gang (Pen. Code, § 186.22 subd. (a)) requires evidence that two gang members from the same gang, not merely two gang members, acted together in committing felonious criminal conduct. Appellant (a “Puente 13” gang member) was convicted of robbery, participating in the felonious conduct of a criminal street gang, and other offenses, based on evidence he aided an 18th Street gang member, de la Paz, in obtaining money from Bransford. One issue on appeal was the sufficiency of the gang participation evidence. Held: Reversed. Penal Code section 186.22, subdivision (a) requires evidence that the defendant is an active gang participant who knows his gang engages in criminal conduct and who willfully promotes or assists “in any felonious criminal conduct by members of that gang.” The plain meaning of the statute reflects that the Legislature’s use of the word “that” preceding the singular “gang” refers to the same gang of which the defendant is an active participant. Appellant and de la Paz were members of different gangs and no evidence showed they were members of subsets of the same gang who typically work together. The evidence was insufficient to sustain the conviction for gang participation.