Is possession of a loaded firearm a felony under section 12031 of the California Criminal Code?

The court construed the language in section 12031, subdivision (a)(2) "as referring to the substantive gang offense defined in section 186.22(a)." (People v. Robles, supra, 23 Cal.4th at p. 1115, 99 Cal.Rptr.2d 120, 5 P.3d 176.) As a result, the court concluded possession of a loaded firearm in public is punished as a felony under section 12031, subdivision (a)(2)(C) "when a defendant satisfies the elements of the offense described in section 186.22(a). Those elements are [1] actively participat[ing] in any criminal street gang [2] 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. [Citation.]" (People v. Robles, 23 Cal.4th at p. 1115, 99 Cal.Rptr.2d 120, 5 P.3d 176; see CALCRIM No. 1400.) In other words, a violation of section 186.22(a) is a prerequisite to elevating a violation of section 12031 from a misdemeanor to a felony under subdivision (a)(2)(C) of the latter section.

In People v. Lamas, supra, 42 Cal.4th 516, 67 Cal.Rptr.3d 179, 169 P.3d 102, the court again confronted the interplay between section 186.22(a) and section 12031, subdivision (a)(2)(C). This time the issue was whether possession of a loaded firearm in publicagain, normally a misdemeanorcould serve as the felonious criminal conduct necessary to fulfill the third element of a section 186.22(a) violation. (Id. at pp. 519520, 67 Cal.Rptr.3d 179, 169 P.3d 102.) In connection with the gang charge, the jury in Lamas had been instructed, in pertinent part: " [f]elonious criminal conduct includes carrying a loaded firearm in a public place by a gang member ... or ... carrying a concealed firearm by a gang member. " (Id. at pp. 521522, 67 Cal.Rptr.3d 179, 169 P.3d 102, italics and fn. omitted.) The problem with this instruction was evident. It used a misdemeanor offense as the felonious criminal conduct necessary to prove the defendant violated the gang statute, a clear example of bootstrapping.