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The People v. Daniel Infante

October 2, 2012

THE PEOPLE, PLAINTIFF AND APPELLANT,
v.
DANIEL INFANTE, DEFENDANT AND RESPONDENT.



Appeal from an order of the Superior Court of Orange County, Richard W. Standford, Jr., Judge. (Super. Ct. No. 10NF1137)

The opinion of the court was delivered by: Moore, Acting P. J.

CERTIFIED FOR PUBLICATION

OPINION

Reversed.

Defendant Daniel Infante was charged in an information with possession of a concealed firearm in a motor vehicle by an active gang participant (Pen. Code,*fn1 former § 12025, subds. (a)(1), (b)(3), repealed by Stats. 2010, ch. 711, § 4), possession of a loaded firearm in public by an active gang member (former § 12031, subds. (a)(1), (2)(C), repealed Stats. 2010, ch. 711, § 4), possession of a firearm by a felon (former § 12021, subd., (a)(1), repealed by Stats. 2010, ch. 711, § 4),*fn2 and active participation in a criminal street gang (§ 186.22, subd. (a); hereafter 186.22(a)).

This appeal from the partial granting of defendant's section 995 motion presents a recurring issue involving the interplay between sections 12025, 12031, and section 186.22(a). Violations of sections 12025 and 12031 are normally deemed misdemeanors. (§§ 12025, subd. (b)(7), 12031, subd. (a)(2)(G).) However, each section contains a provision elevating the offense to a felony when the defendant is proved to be "an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22, under the Street Terrorism Enforcement and Prevention Act . . . ." (§§ 12025, subd. (b)(3), 12031, subd. (a)(2)(C).)

In People v. Robles (2000) 23 Cal.4th 1106, our Supreme Court held proof the defendant violated section 186.22(a) is required to elevate a violation of section 12031, subdivision (a)(1) from a misdemeanor to a felony. In People v. Lamas (2007) 42 Cal.4th 516, the court held a violation of section 12031, subdivision (a)(1) cannot serve as the felonious criminal conduct necessary to prove a violation of section 186.22(a).

(Id. at p. 519.) The condemned practice was nothing short of bootstrapping:*fn3 The possession of a firearm, a misdemeanor until a violation of section 186.22(a) has been proved (People v. Robles, supra, 23 Cal.4th at p. 1115), was used as the felonious criminal conduct necessary to establish a violation of section 186.22(a). (People v. Lamas, supra, 42 Cal.4th at p. 521.) Then, once a violation of section 186.22(a) was established, the misdemeanor firearm charge was elevated to a felony. It could also be said in such situations, the prosecution placed the cart before the horse: the possession of a loaded firearm becomes a felony only after the defendant is proven to have violated section 186.22(a).

In In re Jorge P. (2011) 197 Cal.App.4th 628, the appellate court held the minor's otherwise misdemeanor possession of a loaded firearm in a motor vehicle could not be used as the felonious conduct necessary to prove a violation of section 186.22(a). (Id. at p. 630.) But the court went one step further and interpreted language in Lamas -- that the felonious criminal conduct required by section 186.22(a) must be "distinct from" the otherwise misdemeanor conduct of possessing a loaded or concealed firearm (People v. Lamas, supra, 42 Cal.4th at pp. 519-520) -- to mean that even if possession of the firearm is punishable as a felony under some other statute, that felonious criminal conduct is not distinct from the conduct involved in the otherwise misdemeanor possession of the same firearm under sections 12025 and 12031, and under that circumstance the section 12025 and 12031 offenses are not be elevated to felonies. (In re Jorge P., supra, 197 Cal.App.4th at pp. 632, 638.)

We respectfully disagree with our colleagues in the Fifth Appellate District. It appears to us the rationale implicit in both Robles and Lamas was to preclude the prosecution from bootstrapping what would otherwise be misdemeanor conduct into the "felonious criminal conduct" required to find a violation of section 186.22(a), and then having purportedly established a violation of that section, using that violation to elevate misdemeanor firearm possession into a felony in a nunc pro tunc-like fashion.

Bootstrapping is not present when, as in the present case, possession of the firearm is independently punishable as a felony under another penal statute. In such a case, a violation of section 186.22(a) rests on the felonious criminal conduct of the defendant, not conduct punishable only as a misdemeanor until a violation of section 186.22(a) has been established. When possession of the firearm is independently punishable as a felony under some other statutory provision, such as it is in this case under section 12021, subdivision (a)(1) (convicted felon in possession of a firearm), that possession may be used as the felonious criminal conduct necessary to establish a violation of section 186.22(a). Having established probable cause to believe defendant violated section 186.22(a), the otherwise misdemeanor offenses of carrying a concealed firearm in public (§ 12025, subd. (a)(1)) and possessing a loaded firearm in public (§ 12031, subd. (a)(1)) may be charged as felonies.

I BACKGROUND AND FACTS

The felony complaint charged defendant with possession of a concealed firearm in a motor vehicle by an active gang participant (§ 12025, subds. (a)(1), (b)(3); count one), possession of a loaded firearm in public by an active gang participant (§ 12031, subds. (a)(1), (2)(C); count two), possession of a firearm by a felon (§ 12021, subd. (a)(1); count three), and active participation in a criminal street gang (§ 186.22(a); count four). All offenses were alleged to have occurred on April 1, 2010. The complaint further alleged defendant served two prior terms in state prison (§ 667.5, subd. (b)) and that the firearm charges were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)). The magistrate held defendant to answer on all charges at the conclusion of the preliminary examination, but discharged defendant on the gang enhancement allegation.

The information realleged the substantive offenses and alleged defendant served three prior terms in prison. Defendant filed a section 995 motion to set aside all the charges with the exception of the charge of possession of a firearm by a convicted felon. (ยง 995, subd. (a)(2)(B) [defendant committed without reasonable or probable cause].) The court denied defendant's motion. On September 9, 2011, defendant pled guilty to possession of a firearm by a felon (count three) and active participation in a criminal street gang (count four). Counts one (possession of a concealed firearm by an active gang participant) and two (possession of a loaded firearm in public by an active gang participant) were dismissed on the People's motion. ...


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