Can a defendant be convicted of both counts of membership of a criminal street gang and a charge of criminal activity under section 654 of the California Criminal Code?

Section 654 provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Section 186.22, subdivision (a), which penalizes active participation in a criminal street gang, requires an act beyond mere membership in a gang. Where the sole act supported by the evidence which can constitute active participation in a gang also constitutes a charged offense, the defendant may be convicted of both but may be punished only under the statute which provides for the greatest punishment. The other sentence must be stayed. (People v. Mesa, supra, 54 Cal.4th at pp. 195-198, 201.) Accordingly, because both counts in case No. INF067218

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