Castenada

For the fourth time in roughly as many years, we construe Penal Code section 186.22, a provision of the California Street Terrorism Enforcement and Prevention Act of 1988, also known as the STEP Act. The three previous decisions, People v. Zermeno (1999) 21 Cal.4th 927 [ 89 Cal.Rptr.2d 863 , 986 P.2d 196 ], People v. Loeun (1997) 17 Cal.4th 1 [ 69 Cal.Rptr.2d 776 , 947 P.2d 1313 ], and People v. Gardeley (1996) 14 Cal.4th 605 [ 59 Cal.Rptr.2d 356 , 927 P.2d 713 ], involved an interpretation by this court of certain phrases in subdivision (b)(1) of section 186.22, which increases the punishment for some gang-related crimes. The case now before us, however, concerns subdivision (a), which states that a violation of this provision is a crime punishable by incarceration either in county jail or in state prison. As relevant here, an element of this offense is that the defendant, in the words of subdivision (a), “actively participates in any criminal street gang.”

To prove that a defendant “actively participates” in a gang, must the prosecution show that the defendant held a leadership position in the gang? Or is it sufficient if the evidence establishes that the defendant’s…