What is the test for an active participant in a criminal street gang?

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, supra, 55 Cal.4th at p. 1138.)

A conviction for unlawfully carrying a loaded firearm in public as an active participant in a criminal street gang ( 25850, subd. (c)(3)) requires the prosecutor to prove each element of the substantive gang offense ( 186.22, subd. (a)). (People v. Infante (2014) 58 Cal.4th 688, 691-692, citing People v. Robles (2000) 23 Cal.4th 1106, 1115.) Here, not only did the People fail to show the existence of a criminal street gang, as discussed under part III, ante, the evidence did not show defendant acted in concert with other gang members in committing the charged offenses.