Filed 2/20/14




       IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Appellant,  )
                                     )                             S206084
           v.                        )
                                     )                      Ct.App. 4/3 G046177
DANIEL INFANTE,                      )
                                     )                        Orange County
           Defendant and Respondent. )                    Super. Ct. No. 10NF1137
___________________________________ )


        Under California law, possession of a firearm by a felon is a felony. (Pen.
Code,1 former § 12021, subd. (a)(1), as amended by Stats. 2008, ch. 599, § 4,
p. 4281 [now § 29800, subd. (a)(1), Stats. 2010, ch. 711, § 6].) Unlawfully
carrying a concealed firearm and unlawfully carrying a loaded firearm in public are
ordinarily misdemeanors, but become felonies when committed by “an active
participant in a criminal street gang, as defined in subdivision (a) of Section
186.22.” (Former §§ 12025, subd. (b)(3), as amended by Stats. 1999, ch. 571, § 2,
p. 3961 [now § 25400, subd. (c)(3), Stats. 2010, ch. 711, § 6], 12031, subd.
(a)(2)(C), as amended by Stats. 2009, ch. 288, § 1 [now § 25850, subd. (c)(3),
Stats. 2010, ch. 711, § 6].) The question presented in this case is whether
possession of a firearm by a felon, concededly a felony, constitutes “felonious
criminal conduct” within the meaning of section 186.22, subdivision (a) so as to


1       All further unspecified statutory references are to the Penal Code.



                                          1
elevate to felonies the misdemeanor offenses of carrying that concealed firearm
and carrying that loaded firearm in public. Resolving a conflict in the Court of
Appeal, we conclude that possession of a firearm by a felon does qualify as
“felonious criminal conduct” and therefore affirm the decision below.
                                       BACKGROUND
       In the early morning hours of April 1, 2010, a La Habra police officer pulled
over a Jeep Cherokee driven by defendant Daniel Infante for a traffic violation. A
search of the vehicle revealed a .22-caliber blue steel revolver loaded with hollow-
point cartridges and a loaded nine-millimeter semiautomatic pistol. Based on
reports of the occupants’ prior encounters with police, their own statements and
tattoos, and other information, a gang expert opined at the preliminary hearing that
defendant and the passenger, David Jimenez, were active members of the
“Headhunters” street gang.
       Defendant was charged by information with unlawfully carrying a
concealed firearm in a vehicle by an active participant in a criminal street gang
(former § 12025, subds. (a)(1), (b)(3); count 1), unlawfully carrying a loaded
firearm in public by an active participant in a criminal street gang (former § 12031,
subd. (a)(1), (2)(C); count 2), possession of a firearm by a felon (former § 12021,
subd. (a)(1); count 3), and active participation in a criminal street gang (§ 186.22,
subd. (a); count 4). The information further alleged that defendant had suffered
three prior prison terms (§ 667.5, subd. (b)).
       On September 9, 2011, defendant pleaded guilty to possession of a firearm
by a felon (count 3) and active participation in a street gang (count 4) and admitted
the prior prison term enhancements. The remaining charges were dismissed. At
sentencing, however, the trial court granted defendant’s motion to withdraw his
plea, and the dismissed counts were reinstated. Five weeks later, the trial court
dismissed the charges of unlawfully carrying a concealed firearm by an active gang

                                           2
participant (count 1) and unlawfully carrying a loaded firearm in public by an
active gang participant (count 2), relying on In re Jorge P. (2011) 197 Cal.App.4th
628 (Jorge P.).
       On January 27, 2012, defendant entered into a plea bargain in which he
pleaded guilty to counts 3 and 4 and admitted the three prior prison term
enhancements in exchange for a promise of a two-year prison term. The
sentencing date was continued.
       The People appealed the order dismissing counts 1 and 2. The Court of
Appeal, disagreeing with Jorge P., supra, 197 Cal.App.4th 628, reversed in a
published opinion. We granted review to resolve the conflict.
                                        DISCUSSION
       In 1996, the Legislature amended former section 12025, which defined the
misdemeanor offense of unlawfully carrying a concealed firearm, and former
section 12031, which defined the misdemeanor offense of unlawfully carrying a
loaded firearm in public. (Stats. 1996, ch. 787, §§ 2, 3, pp. 4152-4153.) As a
result of the amendments, unlawfully carrying a concealed firearm and unlawfully
carrying a loaded firearm in public became felonies “[w]here the person is an
active participant in a criminal street gang, as defined in subdivision (a) of Section
186.22.” (Former §§ 12025, subd. (b)(3), 12031, subd. (a)(2)(C).)
       In People v. Robles (2000) 23 Cal.4th 1106, 1115, we interpreted the
alternate penalty provision for the crime of unlawfully carrying a loaded firearm in
public by “an active participant in a criminal street gang, as defined in subdivision
(a) of Section 186.22” (former § 12031, subd. (a)(2)(C)) to require proof of each
element “of the offense described in section 186.22(a). Those elements are
‘actively participat[ing] in any criminal street gang with knowledge that its
members engage in or have engaged in a pattern of criminal gang activity’ and



                                          3
‘willfully promot[ing], further[ing], or assist[ing] in any felonious criminal conduct
by members of that gang.’ ” (Robles, supra, at p. 1115.)
       In People v. Lamas (2007) 42 Cal.4th 516, 519 (Lamas), we “again
consider[ed] the interplay between sections 186.22(a) and 12031(a)(2)(C),” this
time specifying the sequence in which those provisions were to be applied. Lamas
explained that “all of section 186.22(a)’s elements must be satisfied, including that
defendant willfully promoted, furthered, or assisted felonious conduct by his fellow
gang members before section 12031(a)(2)(C) applies to elevate defendant’s section
12031, subdivision (a)(1) misdemeanor offense to a felony.” (Lamas, supra, at p.
524.) Accordingly, “misdemeanor conduct—being a gang member who carries a
loaded firearm in public—cannot satisfy section 186.22(a)’s third element,
felonious conduct,” and thus cannot “be used to elevate the otherwise misdemeanor
offense to a felony.” (Lamas, supra, at p. 524, italics added.) “The same logic,”
we concluded, “applies with equal force to the interplay between section 186.22(a)
and section 12025(b)(3), the section that elevates the misdemeanor offense of
carrying a concealed weapon on one’s person (§ 12025(a)(2)) to a felony if
committed by ‘an active participant in a criminal street gang, as defined in
subdivision (a) of Section 186.22.’ ” (Lamas, supra, at pp. 524-525.) The
rationale for our decision was, quite simply, that “misdemeanor conduct . . . cannot
constitute ‘felonious criminal conduct’ within the meaning of section 186.22.”
(Lamas, supra, at p. 524.)
       In this case, unlike in Lamas, the People do not rely on misdemeanor
conduct to establish the “felonious criminal conduct” element of the substantive
gang offense or of the alternate penalty provision for certain firearm offenses
committed by active gang participants. Defendant concedes, as he must, that a
violation of former section 12021, subdivision (a)(1) is a felony that may be used
to establish the “felonious criminal conduct” element of the substantive gang

                                          4
offense. (See, e.g., People v. Mesa (2012) 54 Cal.4th 191, 197-198, 200.) In
defendant’s view, however, a violation of former section 12021, subdivision (a)(1)
may not be used to elevate the misdemeanor gun offenses charged here to felonies
because, he says, “the same act of gun possession” cannot be used “to both
establish the substantive gang charge and elevate the two otherwise misdemeanor
gun offenses to felony gun offenses.” For this theory, he relies on Jorge P., supra,
197 Cal.App.4th 628.
       In Jorge P., the juvenile court found true the allegations that the minor was
in possession of a concealable weapon (former § 12101, subd. (a) [now § 29610,
Stats. 2010, ch. 711, § 6]), and that the minor unlawfully carried a loaded firearm
in a vehicle (former § 12031, subd. (a)(1)). The juvenile court elevated the
misdemeanor firearm offense to a felony on the asserted ground the minor was an
active participant in a criminal street gang. (Jorge P., supra, 197 Cal.App.4th at p.
631, citing former § 12031, subd. (a)(2)(C).) To satisfy the “felonious criminal
conduct” element of the gang-associated penalty provision, the People relied on the
true finding that the minor had possessed a concealable weapon in violation of
former section 12101, subdivision (a), which is a wobbler. (Jorge P., supra, at p.
632.) The trial court, however, had failed to declare whether this wobbler offense
was a misdemeanor or a felony (see Cal. Rules of Court, rule 5.780(e)(5)), and the
matter was remanded to the juvenile court to enable it to make that determination.
In the interests of “judicial economy,” though, the Court of Appeal considered
whether the wobbler offense, assuming it were deemed a felony, constituted
“ ‘felonious criminal conduct’ ” for purposes of the alternate penalty provision in
former section 12031, and concluded that it did not. (Jorge P., supra, at p. 633.)
In the view of the Court of Appeal, the alternate penalty provision elevating the
misdemeanor firearm offense to a felony based on gang participation “requires
proof of felonious conduct separate and distinct from the conduct supporting a

                                          5
section 12031(a)(1) allegation, notwithstanding the possibility the section
12031(a)(1) conduct can support multiple offense allegations.” (Jorge P., supra,
197 Cal.App.4th at p. 630, italics added.)
       Jorge P. misread our decision in Lamas. Lamas held that the misdemeanor
act of unlawfully carrying a loaded firearm in public under former section 12031,
subdivision (a)(1) by an active gang participant, without more, could not be
elevated to a felony under the gang-associated alternate penalty provision (former
§ 12031, subd. (a)(2)(C)) where the record failed to show that the gang participant
“engaged in any felonious conduct.” (Lamas, supra, 42 Cal.4th at p. 526.) The
alternate penalty provision, as we explained, requires proof that the charged gang
participant willfully promoted, furthered, or assisted felonious conduct by fellow
gang members before one may consider whether that provision applies to elevate to
a felony what would otherwise be the misdemeanor act of unlawfully carrying a
loaded firearm in public. (Lamas, supra, 42 Cal.4th at p. 524.)
       Defendant, like the Court of Appeal in Jorge P., places great emphasis on
one passage in particular from Lamas, which stated “that, in order to establish the
elements of section 186.22, among other things, the prosecution must prove that
the charged gang member willfully promoted, furthered, or assisted members of his
gang in felonious criminal conduct that is distinct from his otherwise misdemeanor
conduct of carrying a loaded firearm in public or carrying a concealed weapon on
his person.” (Lamas, supra, 42 Cal.4th at pp. 519-520.) But we did not thereby
impose the additional requirement, as Jorge P. assumed, that the felonious conduct
be “separate,” “distinct,” or “different” from the conduct supporting the
misdemeanor gun offense. (Jorge P., supra, 197 Cal.App.4th at p. 638.)
       Our analysis in Lamas centered on the trial court’s error in instructing the
jury that “ ‘carrying a loaded firearm in a public place by a gang member’ ” and
“ ‘carrying a concealed firearm by a gang member’ ”—both misdemeanors—

                                             6
constituted “ ‘[f]elonious criminal conduct.’ ” (Lamas, supra, 42 Cal.4th at p.
525.) The error effectively “removed an essential element” from the instructions
on the substantive gang offense and the firearm offenses. (Id. at p. 526.) As to the
substantive gang offense, the instructions “required the jury to find that defendant
committed or aided and abetted a misdemeanor offense, namely, carrying a loaded
firearm in public (§ 12031, subd. (a)(1)), rather than a felony offense as is required
by section 186.22(a).” (Lamas, supra, at p. 525.) As to the firearm offenses, “the
instructions required the jury to find only that defendant committed, or aided and
abetted a gang member in committing, a misdemeanor, rather than that defendant
had engaged in felonious criminal conduct.” (Id. at p. 526, italics omitted.)
Because the record contained “no evidence . . . that suggested defendant engaged
in any felonious conduct,” we deemed the error prejudicial and reversed the
convictions for both the substantive gang offense and the firearm offenses. (Ibid.)
       Thus, in requiring that the “felonious criminal conduct” element of section
186.22, subdivision (a)—whether used to prove the substantive gang offense itself
or the gang-associated alternate penalty provision in sections 12025 and 12031—
be “distinct from” otherwise misdemeanor conduct, we meant no more than that
the conduct’s status as a felony had to be established independently of section
186.22, subdivision (a) as well as independently of former sections 12025 and
12031. (Lamas, supra, 42 Cal.4th at p. 524.) After all, misdemeanor conduct
“cannot satisfy section 186.22(a)’s third element, felonious conduct”—and unless
all the elements of the substantive gang offense are satisfied, neither former section
12025, subdivision (b)(3) nor former section 12031, subdivision (a)(2)(C) may “be
used to elevate the otherwise misdemeanor offense to a felony.” (Lamas, supra, 42
Cal.4th at p. 524.)
       The situation here is distinguishable. Because the felony status of the crime
of felon in possession of a firearm does not depend on the substantive gang offense

                                          7
(§ 186.22, subd. (a)) or on the alternate penalty provisions for certain firearm
offenses committed by an active gang participant (former §§ 12025, subd. (b)(3),
12031, subd. (a)(2)(C)), nothing in Lamas precludes use of that felony conduct to
satisfy the “felonious criminal conduct” element of the substantive gang offense
and thus to elevate the misdemeanor gun offenses to felonies in this case.2
       Moreover, at no point did Lamas suggest that active participation in a
criminal street gang for purposes of the alternate penalty provisions in former
sections 12025 and 12031 meant something narrower than active participation in a
criminal street gang for purposes of section 186.22, subdivision (a). To the
contrary, we explained that the misdemeanor act of unlawfully carrying a loaded or
concealed firearm “ ‘becomes a felony . . . when a defendant satisfies the elements
of the offense described in section 186.22(a).’ ” (Lamas, supra, 42 Cal.4th at p.
523, italics added.) As defendant concedes, “any felonious criminal conduct”
within the meaning of the substantive gang offense (§ 186.22, subd. (a)) includes a
felon’s possession of a firearm. It follows that “any felonious criminal conduct”
would include that same offense for purposes of the gang-associated alternate
penalty provision set forth in former section 12025, subdivision (b)(3) and former
section 12031, subdivision (a)(2)(C), each of which merely incorporates the
elements of section 186.22, subdivision (a). To the extent that In re Jorge P.,
supra, 197 Cal.App.4th 628, suggested otherwise, it is disapproved.
       Defendant alternatively urges us to invoke “[t]he rationale behind the
application of section 654” in this case so as to prevent multiple convictions based

2      Contrary to the suggestion in Jorge P., supra, 197 Cal.App.4th at page 637,
our conclusion does not turn on the fact defendant was separately charged with
being a felon in possession of a firearm. Possession of a firearm by a felon
constitutes felonious conduct regardless of whether the offense was separately
charged.



                                          8
on his single act of possessing a firearm. We decline to do so. “ ‘It is well settled
that section 654 protects against multiple punishment, not multiple conviction.’ ”
(People v. Correa (2012) 54 Cal.4th 331, 336.)




                                          9
                                   DISPOSITION
     The judgment of the Court of Appeal is affirmed.
                                                    BAXTER, J.


WE CONCUR:

CANTIL-SAKAUYE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.




                                     10
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Infante
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 209 Cal.App.4th 987
Rehearing Granted

__________________________________________________________________________________

Opinion No. S206084
Date Filed: February 20, 2014
__________________________________________________________________________________

Court: Superior
County: Orange
Judge: Richard W. Stanford, Jr.

__________________________________________________________________________________

Counsel:

Tony Rackauckas, District Attorney, and Brian F. Fitzpatrick, Deputy District Attorney, for Plaintiff and
Appellant.

Stephen M. Hinkle, under appointment by the Supreme Court, for Defendant and Respondent.




                                                    11
Counsel who argued in Supreme Court (not intended for publication with opinion):

Brian F. Fitzpatrick
Deputy District Attorney
Post Office Box 808
Santa Ana, CA 92702
(714) 347-8789

Stephen M. Hinkle
11260 Donner Pass Road, C-1 PMB 138
Truckee, CA 96161
(530) 553-4425




                                               12
