People v. Mesa

Filed 6/4/

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

) Plaintiff and Respondent, ) ) S185688 v. ) ) Ct.App. 4/1 D056280

TOMMY ANGEL MESA, )

) Riverside County Defendant and Appellant. ) Super. Ct. No. RIF137046 ____________________________________)

Penal Code section 654 provides that a defendant may be punished only once for “[a]n act or omission that is punishable in different ways by different provisions of law.” (All statutory references are to the Penal Code.) In each of two separate incidents, defendant Tommy Mesa, a gang member and convicted felon, shot a victim and was convicted of and punished for assault with a firearm, possession of a firearm by a felon, and actively participating in a criminal street gang. As explained below, we hold that on the facts here, punishing defendant for assault with a firearm and for possession of a firearm by a felon precludes additional punishment for actively participating in a criminal street gang. I. On the evening of April 27, 2007, Ghalen White was awakened by his…

Penal Code section 654 provides that a defendant may be punished only once for “[a]n act or omission that is punishable in different ways by different provisions of law.” (All statutory references are to the Penal Code.) In each of two separate incidents, defendant Tommy Angel Mesa, a gang member and convicted felon, shot a victim and was convicted of and punished for assault with a firearm, possession of a firearm by a felon, and actively participating in a criminal street gang. As explained below, we hold that on the facts here, punishing defendant for assault with a firearm and for possession of a firearm by a felon precludes additional punishment for actively participating in a criminal street gang.

I.

On the evening of April 27, 2007, Ghalen White was awakened by his son Jeron, who said “a bunch of guys” were “hanging out” in front of their Corona apartment complex. Jeron asked White to go outside with him and his prom date to meet his date’s mother. Outside, White saw a group of five or six men, including defendant. He told Jeron and his date to wait near the apartment.

As White walked toward the street, defendant left his group and approached White and asked:…

Whether defendant may be punished separately for the crime of active participation in a criminal street gang is a close question, as the sharp division within the Courts of Appeal indicates. (See People v. Sanchez (2009) 179 Cal.App.4th 1297, 1309-1316 [ 101 Cal.Rptr.3d 639 ] [separate punishment prohibited]; People v. Vu (2006) 143 Cal.App.4th 1009, 1032-1034 [ 49 Cal.Rptr.3d 765 ] [separate punishment prohibited]; People v. Ferraez (2003) 112 Cal.App.4th 925, 935 [ 5 Cal.Rptr.3d 640 ] [separate punishment permitted]; In re Jose P. (2003) 106 Cal.App.4th 458 , 468^-71 [ 130 Cal.Rptr.2d 810 ] [separate punishment permitted]; People v. Herrera (1999) 70 Cal.App.4th 1456, 1465-1468 [ 83 Cal.Rptr.2d 307 ] [separate punishment permitted].) The Court of Appeal here agreed with the decisions permitting separate punishment, as do I. Accordingly, I would affirm the judgment of the Court of Appeal.

In 1988, the Legislature enacted the California Street Terrorism Enforcement and Prevention Act (the STEP Act). (Pen. Code, § 186.20 et seq.; all statutory references are to the Penal Code.) It found and declared “that it is the right of every person ... to be secure and protected from fear,…