Does Section 186.22, subdivision of the Criminal Code, make it a felony for actively participate in a criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity?

Section 186.22, subdivision (a) makes it a felony for one to actively participate in a "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 . . . ." This provision does not punish mere membership in a criminal street gang. The elements of the offense are: "(1) active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; (2) knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and (3) the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang. [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 56.) The issue here, given defendant was acquitted of the only felony he was charged with committing on the same date he allegedly actively participated in a criminal street gang on September 11, 2009, attempted murder as well as the lesser included offense of attempted voluntary manslaughter ( 664, subd. (a), 192, subd. (a)), is whether there is substantial evidence to support the third element of the substantive gang charge.

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