[REVIEW GRANTED] People v. Lamas (2006) 141 Cal.App.4th 604 [46 Cal.Rptr.3d 94]

, REVIEW GRANTED People v. Lamas (2006)141 Cal.App.4th 604 [46 Cal.Rptr.3d 94]

[No. G035001. Fourth Dist., Div. Three. June 20, 2006.]

THE PEOPLE, Plaintiff and Respondent, v. ROBERT ANTHONY LAMAS, JR., Defendant and Appellant.

[Opinion certified for partial publication. fn. * ]

(Superior Court of Orange County, No. 04NF3521, Richard W. Stanford, Jr., Judge.)

(Opinion by Aronson, J., with Sills, P. J., and Fybel, J., concurring.)

COUNSEL

Howard J. Stechel, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent. [141 Cal.App.4th 607]

OPINION

ARONSON, J.-

A jury convicted Robert Anthony Lamas, Jr., of street terrorism (Pen. Code, ? 186.22, subdivision (a); all further statutory references are to this code), possession of a loaded firearm in public by a gang member (? 12031, subd. (a)(1)(C)), possession of a concealed firearm by a gang member (? 12025, subds. (a)(2) & (b)(3)), and resisting a peace officer. The jury acquitted defendant on a charge of receiving the gun as stolen property. The trial court sentenced defendant to a total term of three years and eight months.

Defendant contends the trial court erroneously instructed the jury on the street terrorism and two gun possession charges. He asserts the same argument with respect to all three instructions, namely, that each crime requires the defendant commit or aid and abet "a separate felony" in addition to an underlying gang-related felony. We reject the contention as a misinterpretation of People v. Castenada (2000) 23 Cal.4th 743 (Castenada) and contrary to the Legislature's intent. (People v. Ngoun (2001) 88 Cal.App.4th 432, 435 (Ngoun). We also conclude that, although the instruction concerning the concealed weapons charge should have included the elements of section 186.22, subdivision (a) -- as the Supreme Court decided with regard to an identically-worded code section in People v. Robles (2000) 23 Cal.4th 1106 -- the error was harmless because the jury found the omitted elements true under another properly given instruction. [141 Cal.App.4th 608]

Finally, we agree with defendant that his street terrorism conviction must be reversed as a lesser included offense of possession of a loaded gun in a public place by a gang member. We also agree he is entitled to a stay on the concealed weapon charge pursuant to section 654, as well as seven additional days of presentence custody credits. We therefore affirm the judgment in part, reverse in part, and remand with directions.

IFACTUAL BACKGROUND

Because the issues defendant raises have little to do with the factual circumstances of his crime or the evidence presented at trial, we limit our recitation accordingly. In short, a Buena Park police officer noticed defendant riding a bicycle at 3:15 a.m. without lights. The officer illuminated his vehicle's spotlight and followed defendant, who fled, first on the bicycle and then on foot, jumping a wall. The officer recovered a .45 caliber gun in a planter near where defendant scaled the wall. The gun was dry, whereas the dirt in the planter was wet. The gun contained five bullets. Another officer located defendant crouched by a wall in a backyard a few houses away, and arrested him. At trial, the prosecution presented extensive evidence of defendant's active participation in a criminal street gang.

IIDISCUSSION

A. The Trial Court Properly Instructed the Jury on Section 186.22, Subdivision (a)

[1] Defendant contends the trial court misinstructed the jury on the elements of street terrorism, also known as active gang participation, as defined in section 186.22, subdivision (a). fn. 1 "Subdivision (a) create[s] a [141 Cal.App.4th 609] substantive offense for active participation in a criminal street gang . . . ." (Ngoun, supra, 88 Cal.App.4th at p. 435.) The offense is a "wobbler" because the district attorney may choose to prosecute it as a misdemeanor or as a felony. (Robles, supra, 23 Cal.4th at p. 1113.) [2] The Supreme Court in Robles identified the elements of section 186.22, subdivision (a), as follows: "Those elements are 'actively participat[ing] in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity' and 'willfully promot[ing], further[ing], or assist[ing] in any felonious criminal conduct by members of that gang.'" (Robles, supra, 23 Cal.4th at p. 1115.) As we explain below, the trial court properly instructed the jury on the requisite elements. fn. 2

Defendant's argument is somewhat opaque, but he appears to argue the trial court should have instructed the jury a person cannot be guilty of street terrorism unless he or she commits or aids and abets "a separate felony" in addition to an underlying gang-related felony offense. He relies on an oft-misinterpreted snippet of Castenada, supra, 23 Cal.4th 743, 750, where the Supreme Court stated: "[A] person liable under section 186.22(a) must aid and abet a separate felony offense committed by gang members." Ripped from its context, the quotation arguably supports defendant's position.

[3] But in context, the quotation is part of the Supreme Court's explanation that section 186.22, subdivision (a), avoids punishing mere association with a disfavored organization and, in turn, satisfies the due process requirement of personal guilt (see Scales v. United States (1961) 367 U.S. 203) by criminalizing gang membership only where the defendant bears individual culpability for "a separate felony offense committed by gang members." (Castenada, supra, 23 Cal.4th at pp. 749-751.) In other words, because section 186.22, subdivision (a), "limits [141 Cal.App.4th 610] liability to those who promote, further, or assist a specific felony committed by gang members and who know of the gang's pattern of criminal gang activity" (Castenada, supra, at p. 749), anyone who violates the statute is necessarily more than a nominal or passive gang associate; indeed, he or she "'would also . . . be criminally liable as an aider and abettor to [the] specific crime' committed by the gang's members . . . ." (Ibid.; see generally People v. Beeman (1984) 35 Cal.3d 547, 560 [defining an aider and abettor as one who acts "with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of" an offense (italics omitted)].)

[4] And while Castenada discussed the crime of gang participation in terms of aiding and abetting, Ngoun clarified section 186.22, subdivision (a), also applies to a direct perpetrator's gang-related criminal conduct. After reviewing dictionary definitions of "promote," "further," and "assist," the Ngoun court concluded: "The literal meanings of these critical words square[] with the expressed purposes of the lawmakers. An active gang member who directly perpetrates a gang-related offense 'contributes' to the accomplishment of the offense no less than does an active gang member who aids and abets or who is otherwise connected to such conduct. Faced with the words the legislators chose, we cannot rationally ascribe to them the intention to deter criminal gang activity by the palpably irrational means of excluding the more culpable and including the less culpable participant in such activity." (88 Cal.App.4th at p. 436.)

[5] Notably, Ngoun specifically rejected what appears to be defendant's contention here, i.e., that some "separate" felony is required in addition to the underlying felony committed to further, promote or assist the gang. (See Ngoun, supra, 88 Cal.App.4th at pp. 436-437 [citing cases where "a defendant [was] convicted both as a perpetrator of a substantive felony and as a gang member under section 186.22, subdivision (a) based upon the same felony"].) We agree with Ngoun. In sum, requiring an additional, "separate" felony would defeat the Legislature's purpose of making gang participation itself a substantive crime when it is more than passive or nominal, which is demonstrated by commission of or aiding and abetting even a single instance of gang-related felonious conduct. We therefore reject defendant's argument the jury should have been instructed an additional, separate felony is required. [141 Cal.App.4th 611]

[6] Defendant next contends the trial court erred in instructing the jury that a gang member's possession of a loaded firearm in a public place constitutes "felonious criminal conduct" within the meaning of section 186.22, subdivision (a). The trial court correctly instructed the jury. Carrying a loaded firearm in public is generally a misdemeanor, but the Legislature has elevated the crime to a felony in certain instances, including when the perpetrator "is an active participant in a criminal street gang, as defined in subdivision (a) of [s]ection 186.22 . . . ." (? 12031, subd. (a)(1)(C).)

Resisting this conclusion, defendant seeks support in Robles, but that reliance is misplaced. In Robles, the Supreme Court concluded the above-quoted language of section 12031, subdivision (a)(1)(C) -- i.e., that the perpetrator "is an active participant in a criminal street gang, as defined in subdivision (a) of [s]ection 186.22" -- incorporates all the elements of section 186.22, subdivision (a), to elevate a gang member's possession of a loaded gun in public to a felony, not just the element of active gang participation. (Robles, supra, 23 Cal.4th at p. 1115.)

The Supreme Court therefore affirmed a magistrate's dismissal of a felony gun possession charge because, while the district attorney demonstrated the defendant was an active gang member, "the prosecution presented no evidence of the other requirements of section 186.22(a): 'knowledge that its members engage in or have engaged in a pattern of criminal gang activity' and 'willfully promot[ing], further[ing], or assist[ing] in any felonious criminal conduct by members of that gang.'" (Robles, supra, 23 Cal.4th at p. 1115.) But Robles poses no problem here because defendant does not dispute the prosecution presented evidence on all three of the required elements and, as shown in the margin (see fn. 2, ante), the trial court instructed the jury on all three elements -- not just on active participation. We therefore conclude defendant's challenge to the gang participation instruction is without merit.

B.-D. fn. *

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . [141 Cal.App.4th 612]

IIIDISPOSITION

Defendant's conviction for violation of section 186.22, subdivision (a), is reversed as a lesser included offense, and his conviction for violation of section 12025, subdivisions (a)(2) and (b)(3), is stayed pursuant to section 654; in all other respects, the judgment is affirmed. The judgment is modified (? 1260) to reflect defendant served 268 days in actual custody before sentencing and 134 days of conduct credits, for a total presentence credit of 402 days. The trial court is directed to prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.

Sills, P. J., and Fybel, J., concurred.

?FN *. This opinion is certified for publication with the exception of part II.B., C., and D.

?FN 1. Section 186.22, subdivision (a), provides: "Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years."

?FN 2. In pertinent part, the court instructed the jury: "Every person who actively participates in any criminal street gang with knowledge that the members are engaging in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, is guilty of a violation of Penal Code, ? 186.22, subdivision (a), a crime. [?] . . . [?] In order to prove this crime, each of the following elements must be proved: [?] 1. A person actively participated in a criminal street gang; [?] 2. The members of that gang engaged in or have engaged in a pattern of criminal gang activity; [?] 3. That person knew that the gang members engaged in or have engaged in a pattern of criminal gang activity; and [?] 4. That person either directly and actively committed or aided and abetted other members of that gang in committing the crimes of carrying a loaded firearm." The court also instructed the jury: "Felonious criminal conduct includes carrying a loaded firearm in a public place by a gang member, possession of stolen property or carrying a concealed firearm by a gang member." (See CALJIC No. 6.50; see also CALCRIM No. 1400.)

?FN *. See footnote, ante, page 604.


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