People v. Paigly CA6

Discussion A. Governing Law At the time of the offense charged in this case, section 186.22, subdivision (a), stated: “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 . . . .” (Stats. 2006, ch. 596, § 1, p. 4929, italics added.) The crime of active gang participation has three elements: “(1) active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; (2) knowledge that the gang’s members engage in or have engaged in a pattern of criminal gang activity; and (3) the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang. (People v. Lamas (2007) 42 Cal.4th 516, 523 [67 Cal.Rptr.3d 179, 169 P.3d 102].)” (People v. Albillar (2010) 51 Cal.4th 47, 56 (Albillar).) As emphasized by defendant, “[m]ere active and knowing participation in a criminal street gang is not a crime.” (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130 (Rodriguez).) “Applying…