Can a defendant be convicted of both a substantive and substantive gang crime and a possession of a firearm while active participant in a criminal street gang?

"[D]espite the seemingly absolute language of section 954 ('the defendant may be convicted of any number of the offenses charged'), there is an exception to the general rule permitting multiple convictions. 'Although the reason for the rule is unclear, this court has long held that multiple convictions may not be based on necessarily included offenses. [Citations.]' [Citation.] '"The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense."'" (People v. Ortega (1998) 19 Cal.4th 686, 692, original italics.)

Section 186.22, subdivision (a), makes it a crime to "actively participate[] 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." The substantive gang offense is composed of three elements: (1) active participation in a criminal street gang; (2) knowledge the gang's members have engaged in a pattern of criminal gang activity; and (3) the willful promotion, furtherance, or assistance of any felonious criminal conduct by members of that gang. (People v. Lamas (2007) 42 Cal.4th 516, 523.) The substantive gang offense is directed at targeting "gang members who acted in concert with other gang members in committing a felony regardless of whether such felony was gang related." (People v. Rodriguez (2012) 55 Cal.4th 1125, 1138.)

A conviction for unlawfully carrying a loaded firearm in public as an active participant in a criminal street gang ( 25850, subd. (c)(3), former 12031, subd. (a)(2)(C)) requires the prosecutor to prove each element of the substantive gang offense ( 186.22, subd. (a)). (People v. Robles (2000) 23 Cal.4th 1106, 1115.)

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Mendez was convicted of street terrorism, in violation of section 186.22, subdivision (a) as charged in count 5, and carrying a firearm while he was an active participant in a criminal street gang, in violation of section 25850, subdivision (c)(3) as charged in count 4. He could not have committed count 4 without necessarily committing count 5 at the same time. He cannot be convicted of both crimes. Accordingly, we reverse his conviction on count 5. (People v. Flores (2005) 129 Cal.App.4th 174, 184 [cannot be convicted of both 186.22, subd. (a) and former 12031, subd. (a)(2)(C), continued without substantive change in 25850, subd. (c)(3)].)