Background

• Defendant, Norteño gang member, attacked Stanley Olsen in Marysville; he was accused of attempted robbery and gang participation; two gang experts testified robbery was a primary Norteño activity and the act was for the gang’s benefit; there was no evidence defendant acted with anyone else; jury convicted both attempted robbery and gang participation and found a gang enhancement; trial court granted new trial on the 186.22(b)(1) enhancement for lack of substantial evidence; the Court of Appeal reversed as to 186.22(a); the Supreme Court granted review and affirmed the Court of Appeal’s reversal.
• The People argued that lone felonies by gang members still satisfy 186.22(a); the defense argued 186.22(a) requires participation with other gang members; the court’s analysis centers on the third element of 186.22(a) and statutory wording.
• The court rejected the interpretation that a lone actor can satisfy 186.22(a); it held the third element requires willful promotion, advancement, or assistance in felonious conduct by members of the gang, i.e., conduct by at least two gang members (including the defendant if a member).
• The lead opinion concluded that 186.22(a) does not criminalize mere gang membership or lone commission of a felony; the enhancement 186.22(b)(1) remains applicable when the underlying felony is gang-related and aimed to promote gang activity; the disposition affirmed the Court of Appeal’s reversal as to the 186.22(a) conviction.
• The decision noted the distinction between 186.22(a) and 186.22(b)(1) and rejected prior cases (Ngoun, Salcido, Sanchez) to the extent they suggested lone felonies could satisfy 186.22(a).
• The Court also discussed due process considerations and the Legislature’s intent to narrow criminal liability to active participation with knowledge of gang activity and a nexus to gang conduct.

Issues

Key Cases Cited

• People v. Albillar, 51 Cal.4th 47 (Cal. 2010) (holds 186.22(a) does not require gang-related underlying felonies; focuses on active participation and knowledge of gang activity)
• People v. Castenada, 23 Cal.4th 743 (Cal. 2000) (defines active participation and ties liability to promoting/furthering a specific felony by gang members)
• People v. Gardeley, 14 Cal.4th 605 (Cal. 1996) (discusses STEP Act purpose and patterns of gang activity)
• People v. Ngoun, 88 Cal.App.4th 432 (Cal. App. 2001) (says a lone perpetrator can satisfy 186.22(a) by promoting/furthering felonies by gang members)
• People v. Salcido, 149 Cal.App.4th 356 (Cal. App. 2007) (extends Ngoun to lone felonies; later undermined by Albillar)
• People v. Sanchez, 179 Cal.App.4th 1297 (Cal. App. 2009) (addressed lone felonies and 186.22(a) interpretation in dictum)
• People v. Green, 227 Cal.App.3d 692 (Cal. App. 1991) (discusses meaning of 'members of that gang' in 186.22(a))
• People v. Mesa, 54 Cal.4th 191 (Cal. 2012) (notes mere membership is not punishable; requires knowledge and willful promotion or advancement of activity)
• Scales v. United States, 367 U.S. 203 (U.S. 1961) (due process limits on criminalizing membership; supports requiring active participation with knowledge and intent)
• Albillar, 51 Cal.4th 47 (Cal. 2010) (holds 186.22(a) does not require gang-related underlying felony; clarifies nexus to gang activity)