Rodriguez

We are again called upon to construe Penal Code section 186.22, 1 the California Street Terrorism Enforcement and Prevention Act (the STEP Act) (§ 186.20 et seq.), involving the activity of criminal street gangs. At issue here is section 186.22, subdivision (a) (section 186.22(a)): “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 . . . .” (Italics added.)

We granted review to resolve a conflict in the Courts of Appeal. Under the language of the italicized phrase, does a gang member violate section 186.22(a) if he commits a felony, but acts alone? The Court of Appeal below concluded that he does not. We agree and affirm the judgment of the Court of Appeal.

BACKGROUND

Defendant was a Norteño gang member from Woodland whose girlfriend lived in Marysville. On May 10, 2007, around 10:30 p.m., Stanley Olsen stepped out of his truck in Marysville. Someone behind him spoke. Olsen turned and saw defendant approaching him. Olsen asked…

I concur fully in Justice Corrigan’s determination that defendant’s conviction under Penal Code section 186.22, subdivision (a) (section 186.22(a)) must be reversed. As she explains, an active gang participant only violates section 186.22(a) if he commits the requisite felony collectively with one or more “members of that gang,” rather than while acting alone, as defendant did here. However, unlike Justice *1140 Corrigan, I base my conclusion solely on the plain meaning of the express statutory language. Indeed, I find Justice Corrigan’s analysis persuasive in this regard. Because there is no need to consider the constitutional implications of a contrary construction, as Justice Corrigan does, I write separately to summarize my views.

Two of the three elements of the gang offense in section 186.22(a) are not in issue here: (1) active participation in a criminal street gang, and (2) knowledge that gang members engage in, or have engaged in, a pattern of criminal gang activity.

Critical here is the third element that the knowing and active gang participant “willfully promote[], further[], or assist[] in any felonious criminal conduct by members of that gang.” (§ 186.22(a), italics…

Is the crime of criminal street gang participation (Pen. Code, § 186.22, subd. (a)) 1 committed when a lone gang member’s felonious conduct benefits the gang as a whole? In my view, it is. The lead opinion reaches the opposite conclusion.

I

On the evening of May 10, 2007, in the northern California town of Marysville, defendant, who was an active Norteño gang member, approached Stanley Olsen. Using a racial epithet, defendant demanded Olsen’s money *1142 and threatened to kill him. Defendant then punched Olsen in the jaw and continued to beat him after Olsen fell to the ground. Olsen eventually escaped. When police officers arrested defendant that same night at a nearby apartment, they saw that the words “northern” and “warrior” were tattooed on his arms, and that he was wearing shoes with red laces.

At defendant’s trial, two criminal street gang experts testified for the prosecution: Sergeant Allan Garza of the Yuba County Sheriff’s Department testified that robbery was a primary activity of the Norteño gang in Yuba County; Sergeant Christian Sachs of the Marysville Police Department confirmed that robbery was a primary activity of the gang, and he discussed the gang’s…

BACKGROUND

Defendant was a Norteño gang member from Woodland whose girlfriend lived in Marysville. On May 10, 2007, around 10:30 p.m., Stanley Olsen stepped out of his truck in Marysville. Someone behind him spoke. Olsen turned and saw defendant approaching him. Olsen asked defendant whether Olsen knew him. Defendant responded with a racial epithet and threatened to kill Olsen. Defendant moved so close to Olsen that the chests of the two men were touching. Defendant demanded Olsen‟s money and again threatened him. When Olsen told defendant to go away, defendant punched him in the jaw. The men fell to the ground and defendant continued to beat Olsen. Olsen was ultimately able to get up and run. Eventually, police found defendant in his girlfriend‟s nearby apartment, hiding under a bed. Two gang experts testified that robbery was a primary activity of the Norteño gang and both opined that the attempted robbery of Olsen was committed for the benefit of the gang. There was no evidence that defendant acted with anyone else. The jury convicted defendant of attempted robbery and the separate felony of gang participation. It also found true the enhancement allegation that defendant…