What is the test for a defendant who was convicted of being an active member of a criminal street gang carrying a loaded firearm in a public place?

California, United States of America


The following excerpt is from People v. Simon, F069890, F070825 (Cal. App. 2017):

On appeal, defendant challenges his convictions for being an active member of a criminal street gang carrying a loaded firearm in a public place (count 4) and for active participation in a criminal street gang (count 5).2 The commission of felonious criminal conduct by at least two members of the same gang is an element of both offenses and defendant argues this element is unsupported by substantial evidence. (People v. Infante (2014) 58 Cal.4th 688, 691-692; People v. Rodriguez (2012) 55 Cal.4th 1125, 1139 (Rodriguez).) He also argues the trial court committed instructional error by failing to instruct the jury that the element of felonious criminal conduct requires conduct committed by at least two members of the same gang.

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