IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S145231
v.
Ct.App. 4/3 G035001
ROBERT ANTHONY LAMAS, JR.,
Orange
County
Defendant and Appellant.
Super. Ct. No. 04NF3521
Penal Code section 186.221 is a provision of the California Street Terrorism
Enforcement Act of 1988, also known as the STEP Act. (§ 186.20 et seq.) A
violation of section 12031, subdivision (a)(1), is the misdemeanor offense of
carrying a loaded firearm in public. Subdivision (a)(2)(C) of section 12031
elevates the offense to a felony if committed by “an active participant in a criminal
street gang, as defined in subdivision (a) of section 186.22.”2 We recently
interpreted the phrase “an active participant in a criminal street gang, as defined in
subdivision (a) of section 186.22” in section 12031, subdivision (a)(2)(C) to mean
that “carrying a loaded firearm in public becomes a felony under section
1
All further statutory references are to the Penal Code.
2
Section 186.22, subdivision (a), provides that “[a]ny 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 either as a misdemeanor or as a felony.
1
12031(a)(2)(C) when a defendant satisfies the elements of the offense described in
section 186.22(a).” 3 (People v. Robles (2000) 23 Cal.4th 1106, 1115 (Robles),
italics added.)
In this case, we again consider the interplay between sections 186.22(a) and
12031(a)(2)(C).4 We conclude that, in order to establish the elements of section
186.22, among other things, the prosecution must prove that the charged gang
member willfully promoted, furthered, or assisted members of his gang in
felonious criminal conduct that is distinct from his otherwise misdemeanor
conduct of carrying a loaded firearm in public or carrying a concealed weapon on
his person. This conclusion applies to the substantive charge that defendant is an
active participant of a criminal street gang (§ 186.22(a)) and to the gun offenses
that elevate to felonies only upon proof that defendant satisfied Robles’s
requirements under section 186.22(a).
I. FACTS
At 3:15 a.m., Officer Thomas Carney of the Buena Park Police Department
noticed defendant riding a bicycle without the required lights. When Officer
Carney illuminated defendant with a spotlight, defendant looked at the officer,
shook his head, turned his bicycle around, rode to the back of a nearby restaurant,
3
Throughout this opinion, we refer to section 186.22, subdivision (a) as
section 186.22(a), to section 12031, subdivision (a)(2)(C) as section
12031(a)(2)(C), to section 12025, subdivision (a)(2) as section 12025(a)(2), and to
section 12025, subdivision (b)(3) as section 12025(b)(3).
4
Section 12025(a)(2) defines the misdemeanor offense of carrying a
concealed firearm. Subdivision (b)(3) of section 12025 elevates the offense to a
felony if committed by “an active participant in a criminal street gang, as defined
in subdivision (a) of section 186.22 .” In order to simplify our analysis of the
single legal issue before us, we discuss the effect of our holding regarding the
proof required to satisfy the elements of section 186.22(a) on defendant’s
conviction under section 12025(b)(3) later in this opinion.
2
and dropped his bicycle. Despite Officer Carney’s command to stop, defendant
ran to a wall and jumped over it.
As Officer Carney went over that wall in pursuit, he noticed a “glaring
object” in a planter near where defendant had scaled the wall. From that planter
police retrieved a .45-caliber Ruger Vaquero firearm that contained five bullets.
The gun, which was dry even though the dirt in the planter was wet, did not
belong to the occupants of the house in whose yard it was located. That gun and
four others had been stolen earlier. The owner of the stolen guns testified that he
did not believe defendant had taken them. A second officer located defendant
crouched by a wall in a yard a few houses away from where the gun was found.
Detective Chlebowski, a member of a “tri agency gang enforcement team,”
testified that he believed defendant was an active member in the Baker Street gang
and that defendant was in a rival gang’s territory when he was arrested.
Chlebowski acknowledged that defendant was alone when arrested, defendant was
not in contact with other gang members at that time, there was no evidence linking
the Ruger Vaquero with any other gang member, and only defendant “would
know why he was carrying that gun on that day.” Chlebowski testified that Baker
Street gang members recently had been involved in various felony offenses, but he
presented no evidence that police had reason to believe defendant was aware of, or
involved in, any of the gang’s felonious conduct.
Defendant was charged with the following four felonies: active
participation in a gang (§ 186.22(a)); active gang member carrying a loaded
firearm in public (§ 12031(a)(2)(C)); active gang member carrying concealed
firearm on his person (§ 12025, subds. (a)(2) & (b)(3)); and receiving stolen
property (§ 496, subd. (a)). The information also charged defendant with one
misdemeanor, resisting and obstructing an officer (§ 148, subd. (a)(1)). In
conjunction with the loaded firearm charge, the information alleged that defendant
3
committed the offense “for the benefit of, at the direction of, and in association
with BAKER STREET, a criminal street gang, with the specific intent to promote,
further, and assist in criminal conduct by members of that gang” (§ 186.22, subd.
(b)(1)).
The jury found defendant guilty of being an active participant in a criminal
street gang (count 5), the gang-related elevated felony gun offenses (counts 1 and
2), and resisting arrest (count 4). The jury found defendant not guilty of receiving
stolen property, and it found not true the allegation that defendant had carried the
loaded weapon “for the benefit of, at the direction of, or in association with any
criminal street gang.” The Court of Appeal affirmed the elevation of defendant’s
misdemeanor gun offenses to felonies pursuant to section 12031(a)(2)(C) and
12025(b)(3). It also affirmed the misdemeanor resisting arrest conviction. It
reversed the count 5 street terrorism conviction on the basis that it was a lesser
included offense of count 1, and it stayed count 2 pursuant to section 654. We
granted review.
II. DISCUSSION
Defendant contends that, in order to establish the substantive offense of
active participation in a criminal street gang, the People must prove that he
promoted, furthered, or assisted in felonious conduct by members of his gang
distinct from his otherwise misdemeanor offense of carrying a firearm in public in
order to meet the elements of the substantive offense under section 186.22(a).
Defendant also contends the trial court’s instructions improperly eliminated that
requirement with regard to each of the three gang-related charges. We agree.
A. The Relevant Statutes and Jury Instructions
As noted ante, section 186.22(a) provides that “[a]ny person who actively
participates in any criminal street gang with knowledge that its members engage in
4
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 either for a misdemeanor or for a felony. (Italics added.)
With regard to the substantive offense of active participation in a criminal
street gang charged in count 5 (§ 186.22(a)), the trial court instructed the jury, in
part, that “[f]elonious criminal conduct includes carrying a loaded firearm in a
public place by a gang member . . . or . . . carrying a concealed firearm by a gang
member.”5 (Italics added.)
Carrying a loaded firearm in a public place is generally a misdemeanor.
(§ 12031, subd. (a)(1), (2)(G).) The crime elevates to a felony if certain
conditions are met. One such condition is “[w]here the person is an active
participant in a criminal street gang, as defined in subdivision (a) of Section
186.22 . . . .” (§ 12031(a)(2)(C).)
With regard to the felony loaded-firearm offense charged in count 1
(§ 12031(a)(2)(C)), the prosecution submitted, and the trial court gave, a modified
version of CALJIC No. 12.54.1, in relevant part, as follows: “Every person who,
with knowledge of its presence, unlawfully carries a loaded firearm on his person
while in any public place and that person is an active participant in a criminal
street gang, and willfully promotes, furthers, or assists in any felonious criminal
conduct by members of that gang, is guilty of the violation of Penal Code section
12031, subdivision (a)(2)(C), which is a crime. [¶] . . . [¶] In this instruction, the
term ‘active participant’ means that the person must have a relationship with the
criminal street gang that is more than in name only, passive, inactive, or purely
5
We do not discuss the inclusion of “possession of stolen property” in the
trial court’s list of “felonious criminal conduct” because defendant was found not
guilty of receiving stolen property in this case.
5
technical. [¶] Felonious criminal conduct, the term here includes possession of a
loaded or concealed firearm. . . .” (Italics added.)
The trial court then instructed the jury, that, in order to prove the felony
offense of carrying a loaded firearm in public, “each of the following elements
must be proved: Number one, a person carried a loaded firearm on his person
while on a public street or in a public place. Number two, the person had
knowledge of the presence of the firearm and number three, at the time the person
was an active participant in a criminal street gang. Number four, the members of
that gang engaged in or have engaged in a pattern of criminal gang activity.
Number five, the person knew that the gang members engaged in or have engaged
in a pattern of criminal gang activity. And number six, that the person either
directly and actively committed or aided and abetted members of that gang in
committing the crime[] of carrying a loaded firearm in public while being a gang
member.” (Italics added.) The trial court then reiterated that “[f]elonious criminal
conduct includes carrying a loaded firearm in public by a gang member.”
B. The Robles and Castenada Decisions
As stated above, section 12031(a)(2)(C) provides, in relevant part, that the
offense of carrying a loaded firearm in a public place elevates to a felony “[w]here
the person is an active participant in a criminal street gang, as defined in
subdivision (a) of section 186.22 . . . .” In Robles, we noted that, “[c]ontrary to
the express language of section 12031(a)(2)(C), however, subdivision (a) of
section of 186.22 . . . does not at all define the statutory phrase ‘an active
participant in a criminal street gang.’” (Robles, supra, 23 Cal.4th at p. 1111.)
In People v. Castenada (2000) 23 Cal.4th 743, we held that one of the
elements of section 186.22(a) is “ ‘active[] participa[tion] in any criminal street
gang,’ ” which means “defendant’s involvement with the gang is more than
6
nominal or passive.” (People v. Castenada, at p. 745.) In Robles, we construed
“section 12031(a)(2)(C)’s phrase ‘active participant in a criminal street gang, as
defined in subdivision (a) of Section 186.22’ as referring to the substantive gang
offense defined in section 186.22(a).” (Robles, supra, 23 Cal.4th at p. 1115.)6
The substantive offense defined in section 186.22(a) has three elements.
Active participation in a criminal street gang, in the sense of participation that is
more than nominal or passive, is the first element of the substantive offense
defined in section 186.22(a). The second element is “knowledge that [the gang’s]
members engage in or have engaged in a pattern of criminal gang activity,” and
the third element is that the person “willfully promotes, furthers, or assists in any
felonious criminal conduct by members of that gang.” (§ 186.22(a).)
Therefore, Robles held that “carrying a loaded firearm in public becomes a
felony under section 12031(a)(2)(C) when a defendant satisfies the elements of the
offense described in section 186.22(a)” by “‘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.’
(§ 186.22(a).)” (Robles, supra, 23 Cal.4th at p. 1115.)
6
In order to construe the statutory language “as defined in subdivision (a) of
section 186.22,” we undertook to determine what the legislative intent was in
drafting that language as used in section 12031(a)(2)(C). (Robles, supra, 23
Cal.4th at p. 1111.) We found that “the legislative history of section
12031(a)(2)(C) g[ave] no clear guidance regarding” the Legislature’s intended
meaning. (Id. at p. 1114.) Consequently, we looked to the following rule of
statutory construction: “When, as here, the language of a penal law is reasonably
susceptible of two interpretations, we construe the law ‘as favorably to criminal
defendants as reasonably permitted by the statutory language and circumstances of
the application of the particular law at issue.’ [Citations.]” (Id. at p. 1115.)
7
C. Application of Robles when a Gang Member Is Charged with a
Misdemeanor Gun Offense
Robles suggests that mere proof that defendant is more than a nominal
member of a criminal street gang and that he committed the misdemeanor offense
of carrying a loaded firearm in public is not sufficient to satisfy the elements of
section 186.22(a) or to elevate a section 12031, subdivision (a)(1) misdemeanor
violation to a felony under section 12031(a)(2)(C) by operation of section
186.22(a). In the present case, we hold that, in order to prove the elements of the
substantive offense defined in section 186.22(a), the prosecution must prove that
defendant (1) is more than a nominal member of a criminal street gang, that (2) he
had “knowledge that its members engage in or have engaged in a pattern of
criminal gang activity,” and that (3) he “willfully promot[ed], further[ed], or
assist[ed] in . . . felonious criminal conduct by members of that gang”
(§ 186.22(a)) that is distinct from his otherwise misdemeanor conduct of carrying
a loaded weapon in public.
In other words, all of section 186.22(a)’s elements must be satisfied,
including that defendant willfully promoted, furthered, or assisted felonious
conduct by his fellow gang members before section 12031(a)(2)(C) applies to
elevate defendant’s section 12031, subdivision (a)(1) misdemeanor offense to a
felony. Stated conversely, section 12031(a)(2)(C) applies only after section
186.22(a) has been completely satisfied by conduct distinct from the otherwise
misdemeanor conduct of carrying a loaded weapon in violation of section 12031,
subdivision (a)(1). Therefore, defendant’s misdemeanor conduct — being a gang
member who carries a loaded firearm in public — cannot satisfy section
186.22(a)’s third, felonious conduct, element and then be used to elevate the
otherwise misdemeanor offense to a felony.
8
The People acknowledge that a prior misdemeanor conviction under section
186.22(a) cannot satisfy the elements of section 186.22 or the elements of section
12031(a)(2)(C). They concede that “misdemeanor convictions do not constitute
‘felonious criminal conduct[,]’ [s]o a person with a prior misdemeanor conviction
for section 186.22, subdivision (a) is not in violation of section 12031, subdivision
(a)(2)(C), unless the current charged firearm possession itself constitutes
‘felonious criminal conduct’ . . . .” It logically follows that misdemeanor conduct
similarly cannot constitute “felonious criminal conduct” within the meaning of
section 186.22.
The same logic applies with equal force to the interplay between section
186.22(a) and section 12025(b)(3), the section that elevates the misdemeanor
offense of carrying a concealed firearm on one’s person (§ 12025(a)(2)) to a
felony if committed by “an active participant in a criminal street gang, as defined
in subdivision (a) of section 186.22 .” (§ 12025(b)(3).) In Robles we used rules of
statutory construction in analyzing the meaning of this phrase in the context of
section 12031(a)(2)(C). Sections 12025(b)(3) and 12031(a)(2)(C) were both
enacted as part of the Anti-Street Crimes Act of 1995, and they both focus on
carrying a gun. (Stats. 1996, ch. 787, §§ 1, 2, 3, pp. 4152-4154.) “It is an
established rule of statutory construction that similar statutes should be construed
in light of one another [citations] and that when statues are in pari materia similar
phrases appearing in each should be given like meanings. [Citations.]” (People v.
Caudillo (1978) 21 Cal.3d 562, 585, overruled on other grounds in People v.
Martinez (1999) 20 Cal.4th 225, 229, 237, fn. 6.) We therefore apply our
interpretation of section 12031(a)(2)(C) in Robles to the identical language found
in section 12025(b)(3). Thus, there must be evidence that a defendant promoted,
furthered, or assisted felonious conduct by other gang members distinct from his
otherwise misdemeanor offense of carrying a concealed firearm on his person to
9
elevate the offense to a felony pursuant to section 12025(b)(3). Without the
additional evidence, the prosecution cannot satisfy section 186.22(a)’s elements,
and the misdemeanor offense of carrying a concealed firearm cannot be elevated
to a felony under section 12025(b)(3).
In the present case, in instructing the jury with regard to the substantive
offense of active participation in a criminal street gang charged in count 5
(§ 186.22(a)), the trial court stated that “[f]elonious 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,” and that “ [i]n
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
crime[] of carrying a loaded firearm.” (Italics added.)7 The count 5 instructions
removed the element of involvement in felonious criminal conduct and required
the jury to find that defendant committed or aided and abetted a misdemeanor
offense, namely, carrying a loaded firearm in public (§ 12031, subd. (a)(1)), rather
than a felony offense as is required by section 186.22(a).
Similarly, with regard to the felony loaded-firearm offense charged in court
1, and the felony concealed-firearm offense charged in count 2, the trial court
erroneously instructed that, with regard to the required finding that defendant
“willfully promote[d], further[ed], or assist[ed] in any felonious criminal conduct
7
CALCRIM No. 1400 contains the standard jury instruction for the crime of
active participation in a criminal street gang.
10
by members of [his] gang” (§ 186.22(a)), “[f]elonious criminal conduct, the term
here includes possession of a loaded or concealed firearm.” (Italics added.) The
instructions on the felony gun offenses omitted an element because, in the list of
the elements necessary to prove a violation of section 12031(a)(2)(C) and a
violation of section 12025(b)(3), the instructions required the jury to find only that
defendant committed, or aided and abetted a gang member in committing, a
misdemeanor, rather than that defendant had engaged in felonious criminal
conduct.
An instructional error that improperly describes or omits an element of the
crime from the jury’s consideration is subject to the “harmless error” standard of
review set forth in Chapman v. California (1967) 386 U.S. 18, 24.) (People v.
Flood (1998) 18 Cal.4th 470, 502-504.) We thus consider whether it appears
beyond a reasonable doubt that the instructional error did not contribute to the
jury’s verdict. (Chapman v. California, supra, 386 U.S. at p. 24.) Applying the
Chapman standard, we conclude that the trial court’s instructions regarding the
third element of section 186.22(a) were prejudicial as to all three gang-related
felony counts. The jury found defendant not guilty of the felony receiving stolen
property charge, and, here, as in Robles, the prosecution presented no evidence
that defendant knew of, or was involved in, the prior felonious conduct by his
gang members.8 (Robles, supra, 23 Cal.4th at pp. 1110, 1115.) “[S]ection
186.22(a) limits 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.” (People v. Castenada, supra, 23 Cal.4th at p. 749.) Once the jury found
8
We note that, in the present case, the jury also specifically found that
defendant was not acting on behalf of his gang while he was carrying his loaded
gun on the date he was arrested.
11
that defendant was not guilty of receiving stolen property, there was no evidence
before it that suggested that defendant engaged in any felonious conduct, either
concurrently with, or prior to, his misdemeanor gun offenses.9 Accordingly, it is
apparent that the instructional error affected the three verdicts that rested on gang-
related evidence.
We conclude that the trial court committed prejudicial error when it
removed an essential element from its instructions defining section 186.22(a), and
that, in turn, the instructional error regarding section 186.22(a) prejudicially
removed that same element from its instructions defining sections 12031(a)(2)(C)
and 12025(b)(3). Accordingly, defendant’s convictions as to counts 1 and 2 must
be reversed. Count 5 already has been reversed by the Court of Appeal, albeit on
other grounds. Defendant’s section 148, subdivision (a)(1) misdemeanor
conviction is unaffected by this conclusion.
9
We do not address the issue raised in briefing regarding whether the
felonious conduct requirement in section 186.22(a) can be satisfied with conduct
that occurs contemporaneously with otherwise misdemeanor gun offenses because
the record does not contain evidence that defendant Lamas engaged in any
felonious conduct, either concurrently with, or prior to, his misdemeanor gun
offenses.
12
III. CONCLUSION
We reverse in part and affirm in part the judgment of the Court of Appeal.
We remand the matter to the Court of Appeal for further proceedings consistent
with this opinion.
CHIN, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
MORENO, J.
13
CONCURRING OPINION BY BAXTER, J.
I concur in the majority’s holding, solely and reluctantly under compulsion
of People v. Robles (2000) 23 Cal.4th 1106 (Robles). It is unfortunate, however,
that the analysis embraced in Robles will continue to impede law enforcement
efforts to eradicate unlawful criminal street gang activity, including the type of
crimes involved here.
I.
Responding to the “state of crisis” in California “caused by violent street
gangs whose members threaten, terrorize, and commit a multitude of crimes
against the peaceful citizens of their neighborhoods” (Pen. Code, § 186.21, 2d
par.; all further statutory references are to this code unless otherwise indicated),
our lawmakers passed the California Street Terrorism Enforcement and Prevention
Act of 1988 (§ 186.20 et seq.), and later the Anti-Street Crimes Act of 1995 (Stats.
1996, ch. 787, §§ 1, 2, 3). But alleviating this crisis remains considerably more
difficult because this court persists in a flawed construction of anti-street crime
legislation that elevates two firearm offenses from misdemeanors to felonies when
the defendant is an active participant in a criminal street gang. (See § 12031,
subd. (a)(2)(C) (hereafter section 12031(a)(2)(C)) [carrying a loaded firearm];
§ 12025, subd. (b)(3) (hereafter section 12025(b)(3)) [carrying a concealed
firearm].)
1
By its terms, section 12031(a)(2)(C) authorizes felony punishment when a
person carrying a loaded firearm in public “is an active participant in a criminal
street gang, as defined in subdivision (a) of Section 186.22” (hereafter section
186.22(a)). In a decision preceding Robles, supra, 23 Cal.4th 1106, this court
unanimously concluded that a defendant “ ‘actively participates in any criminal
street gang,’ within the meaning of section 186.22(a),” when the defendant’s gang
involvement “ ‘is more than nominal or passive.’ ” (People v. Castenada (2000)
23 Cal.4th 743, 752.) Accordingly, as my dissent in Robles explained, it logically
follows that, under section 12031(a)(2)(C), “the crime of carrying a loaded firearm
in public, normally punishable as a misdemeanor, becomes punishable as a felony
when the person carrying the firearm is more than nominally or passively involved
with a criminal street gang.” (Robles, supra, 23 Cal.4th at p. 1117 (dis. opn. of
Baxter, J.).)
Disregarding this natural and commonsense reading of section
12031(a)(2)(C), the Robles majority construed the statute to authorize felony
punishment for the firearm violation only upon further proof that the defendant
actually violated section 186.22(a), which entails the following three elements:
(1) the defendant actively participates in a criminal street gang; (2) with
knowledge that its members engage or have engaged in a pattern of criminal gang
activity; and (3) the defendant willfully promotes, furthers, or assists in any
felonious criminal conduct by members of that gang. (See Robles, supra, 23
Cal.4th at p. 1115.)
Following the analytical path taken in Robles, the court here is compelled
to hold that felony punishment under section 12031(a)(2)(C) is possible only if the
prosecution can prove a complete violation of section 186.22(a), without sole
reference to the current firearm charge. Under this rule, section 186.22(a)’s third
element of willfully promoting, furthering, or assisting in any felonious criminal
2
conduct by gang members cannot be satisfied by proof of the charged incident of
carrying a loaded firearm, but must be established by proof of a separate felony.
I continue to find Robles problematic because nothing in section
12031(a)(2)(C)’s text or history suggests it is intended to target only those gun-
toting active gang participants who have violated section 186.22(a) and thus have
been involved in other separate gang-related felonies. Not only is Robles’s
construction unsupported in this regard, but as a practical matter it strips the
statute of any meaningful utility as an anti-street crime measure.
Significantly, the court here does not disavow its earlier concession in
Robles that its construction of section 12031(a)(2)(C) leaves prosecutors with little
use for the provision in cases where a defendant commits a violation of section
186.22(a) while carrying a concealed firearm in public: “It is true that a violation
of section 186.22(a), when punished as a felony, results in a maximum three-year
prison sentence. It is also true that a violation of that section while carrying a
firearm triggers section [12021.5, subdivision (a)], which imposes additional
punishment of up to three years in state prison. Thus, the People are correct that a
defendant violating section 186.22(a) while carrying a loaded firearm could be
subject to a longer term of imprisonment (six years) than the maximum three-year
term for violating section 12031(a)(2)(C) . . . .” (Robles, supra, 23 Cal.4th at p.
1113.)
In the face of this obvious deficiency, Robles offered an alternative theory
to justify section 12031(a)(2)(C)’s existence: “[T]he Legislature may have
enacted section 12031(a)(2)(C) to cover a situation not subject to felony
punishment under section 186.22(a): when the person carrying the loaded firearm
had at some other time committed a violation of section 186.22(a).” (Robles,
supra, 23 Cal.4th at p. 1113.)
3
This rationale, also not disavowed here, is unconvincing for two reasons.
First, section 12031(a)(2)(C) is explicit in authorizing felony punishment for a
firearm violation “[w]here the person is an active participant in a criminal street
gang.” (Italics added.) Hence, the wording of the statute defies any notion that it
is intended to apply where the defendant previously “was” an active gang
participant who violated section 186.22(a) at some other time in the past. (Robles,
supra, 23 Cal.4th at p. 1118 (dis. opn. of Baxter, J.).) Second, there appears to be
only a narrow range of defendants who would not already be subject to felony
punishment where section 12031(a)(2)(C) might apply, i.e., those defendants who
previously were convicted of misdemeanor violations of section 186.22(a), and
those who violated section 186.22(a) at some previous time, but the statute of
limitations has run. As the People point out, it is highly unlikely the Legislature
enacted section 12031(a)(2)(C) to target only these particular defendants.
While I continue to have significant disagreements with the court’s
construction of section 12031(a)(2)(C), I agree that, whether or not correct, the
same analysis governs the interplay between section 186.22(a) and section
12025(b)(3), which elevates the misdemeanor offense of carrying a concealed
firearm on one’s person to a felony if committed by “an active participant in a
criminal street gang, as defined in subdivision (a) of Section 186.22.”
(§ 12025(b)(3); see maj. opn., ante, at p. 9.) Accordingly, both the court’s
analysis and my alternative analysis of section 12031(a)(2)(C) apply to the
identical language set forth in section 12025(b)(3).
II.
In this case, the evidence showed that defendant was an active member of a
criminal street gang, and that he was in a rival gang’s territory with a concealed
and loaded gun shortly before he was arrested. (See maj. opn., ante, at p. 3.)
Despite the express legislative desire to stem criminal street gang violence and to
4
severely punish armed, active gang participants such as defendant, faithful
application of the statutory analysis adopted in Robles, supra, 23 Cal.4th 1106,
means that, without evidence of separate felonious conduct, defendant can receive
no harsher punishment for his two firearm offenses than any ordinary member of
the public with no gang ties whatsoever.
Accepting Robles as our court’s interpretation of section 12031(a)(2)(C),
and by extension section 12025(b)(3), I reluctantly agree that defendant’s felony
firearm convictions must be reversed due to erroneous instruction.
BAXTER, J.
I Concur:
CORRIGAN, J.
5
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Lamas
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 141 Cal.App.4th 604
Rehearing Granted
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Opinion No.
S145231Date Filed: October 25, 2007
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Court:
SuperiorCounty: Orange
Judge: Richard W. Stanford, Jr.
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Attorneys for Appellant:
Howard J. Stechel, under appointment by the Supreme Court, for Defendant and Appellant.__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette,Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, James D. Dutton, Steve
Oetting and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Howard J. Stechel3325 Wilshire Boulevard, Suite 700
Los Angeles, CA 90010
(213) 380-2800
Melissa Mandel
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
(619) 645-2211
Opinion Information
| Date: | Docket Number: |
| Thu, 10/25/2007 | S145231 |
Parties
| 1 | Lamas, Robert Anthony (Defendant and Appellant) Represented by Howard J. Stechel Attorney at Law 3325 Wilshire Boulevard, Suite 700 Los Angeles, CA |
| 2 | The People (Plaintiff and Respondent) Represented by Melissa A. Mandel Office of the Attorney General 110 W. "A" Street, Suite 1100 San Diego, CA |
| Disposition | |
| Oct 25 2007 | Opinion: Affirmed in part/reversed in part |
| Dockets | |
| Jul 21 2006 | Received premature petition for review Robert Anthony Lamas, Jr., appellant Howard J. Stechel, appointed |
| Jul 21 2006 | Record requested |
| Jul 26 2006 | Received Court of Appeal record one file folder/briefs/transcripts |
| Aug 22 2006 | Case start: Petition for review filed Robert Anthony Lamas, Jr., appellant Howard J. Stechel, CAP/appointed |
| Oct 13 2006 | Time extended to grant or deny review The time for granting or denying review in the above-entitled matter is hereby extended to and including November 20, 2006, or the date upon which review is either granted or denied. |
| Nov 1 2006 | Petition for review granted (criminal case) votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno & Corrigan, JJ. |
| Nov 15 2006 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Howard Stechel is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order. |
| Dec 4 2006 | Opening brief on the merits filed appellant Robert Anthony Lamas Jr. |
| Dec 22 2006 | Request for extension of time filed counsel for respondent requests extension of time to February 2, 2007, to file the respondent's brief on the merits. |
| Jan 2 2007 | Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the mertis is extended to and including February 2, 2007. |
| Feb 2 2007 | Request for extension of time filed counsel for respondent requests extension of time to 3-4-07 to file the answer brief on the merits. *** granted *** order being prepared. |
| Feb 9 2007 | Extension of time granted On application of respondent and good cause appearing, it ordered that the time to serve and file the answer brief on the merits is extended to and including March 5, 2007. |
| Feb 21 2007 | Answer brief on the merits filed counsel for resp. |
| Mar 6 2007 | Request for extension of time filed to file reply brief/merits to 04-12-2007 Appellant Robert Anthony Lamas, Jr., Atttorney Howard J. Stechel |
| Mar 14 2007 | Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including April 12, 2007. |
| Apr 9 2007 | Reply brief filed (case fully briefed) Appellant Robert Anthony Lamas, Jr., |
| Aug 8 2007 | Case ordered on calendar to be argued on Thursday, September 6, 2007, at 1:30 p.m., in San Francisco |
| Aug 27 2007 | Argument rescheduled Case has been moved to the morning session on Thursday, September 6, 2007. |
| Sep 6 2007 | Cause argued and submitted |
| Oct 25 2007 | Opinion filed: Affirmed in part, reversed in part Remanded to the Court of Appeal for further proceedings. OPINION BY: Chin, J. ---- joined by: George, C.J., Kennard, Werdegar, Moreno, JJ. CONCURRING OPINION BY: Baxter, J. ---- joined by : Corrigan, J. |
| Nov 27 2007 | Remittitur issued (criminal case) |
| Dec 7 2007 | Received: from CA 4/3 receipt for remittitur. |
| Briefs | |
| Dec 4 2006 | Opening brief on the merits filed |
| Feb 21 2007 | Answer brief on the merits filed |
| Apr 9 2007 | Reply brief filed (case fully briefed) |
