Does section 12031(a)(2)(C) of the California Criminal Code (the crime of carrying a loaded firearm in public) apply to a person who is "actively participates" in a criminal street gang?

As the majority observes, just last month we unanimously concluded in People v. Castenada, supra, 23 Cal.4th at pages 745 and 752, 97 Cal.Rptr.2d 906, that a defendant "actively participates" in a criminal street gang "within the meaning of section 186.22[(a)]" where the defendant's gang involvement "is more than nominal or passive."⁷ (Maj. opn., ante, 99 Cal.Rptr.2d at p. 123, fn. 2, 5 P.3d at p. 179, fn. 2.) Logically, then, it follows that a person "is an active participant in a criminal street gang, as defined in [section 186.22(a)]" where the person's involvement with a criminal street gang is more than nominal or passive. Under this natural and commonsense reading of section 12031(a)(2)(C), the crime of carrying a loaded firearm in public, normally punishable as a misdemeanor, becomes punishable as a felony when the person carrying the firearm is more than nominally or passively involved with a criminal street gang.

As explained in People v. Castenada, a person's active participation in a criminal street gang, without more, does not amount to a violation of section 186.22(a):

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"[T]he Legislature expressly required in section 186.22(a) that a defendant not only `actively participates' in a criminal street gang ... but also that the defendant does so with `knowledge that [the gang's] members engage in or have engaged in a pattern of criminal gang activity,' and that the defendant `willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.'" (People v. Castenada, supra, 23 Cal.4th at p. 749, 97 Cal.Rptr.2d 906, italics added.) It therefore is plain that section 186.22(a)'s phrase "actively participates in any criminal street gang" refers to only one of three distinct elements of the offense described in that statute. Notwithstanding the foregoing, the majority effectively construes section 12031(a)(2)(C)'s key reference to "an active participant in a criminal street gang, as defined in [section 186.22(a)]" to mean a person who: (1) actively participates in a criminal street gang by being more than nominally or passively involved in the gang; and (2) participates with knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and (3) willfully promotes, furthers, or assists in any felonious criminal conduct by gang members. Accordingly, under the majority's interpretation, section 12031(a)(2)(C) purports to authorize felony punishment only where the prosecution can establish all three criteria and prove not only that the defendant violated section 12031, subdivision (a)(1) by unlawfully carrying a loaded firearm in public, but also that he or she has committed a section 186.22(a) offense by aiding and abetting yet another separate felony offense by gang members (see People v. Castenada, supra, 23 Cal.4th at pp. 749, 751, 97 Cal. Rptr.2d 906). In the majority's view, the prosecution may show that the section 186.22(a) offense was committed either concurrently with the section 12031(a)(1) offense or "at some other time." (Maj. opn., ante, 99 Cal.Rptr.2d at p. 125, 5 P.3d at p. 18.)

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