People v. Hernandez CA2/1

BACKGROUND

1. The Offenses On November 2, 2012, at approximately 12:33 a.m., Officer Nicholas Franco of the West Covina Police Department was driving in West Covina in an area that was

All statutory references herein are to the Penal Code unless otherwise indicated. 2 Former section 12031, subdivision (a)(1) is now section 25850. (Added by Stats. 2010, ch. 711, § 6, eff. Jan. 1, 2011, operative Jan. 1, 2012.) Former section 12031, subdivision (a)(2)(C) provided the offense was a felony where “the person is an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22 . . . .” 3 A violation of section 186.22, subdivision (a) has three elements. The first is active participation in a criminal street gang, in the sense of participation that is more than nominal or passive. (People v. Castenada (2000) 23 Cal.4th 743, 745.) The second is knowledge the gang’s members “engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (a).) The third is conduct that willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang. (People v. Lamas (2007) 42 Cal.4th 516, 523; People v.…