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People v. Infante

Supreme Court of California

February 20, 2014

The PEOPLE, Plaintiff and Appellant,
v.
Daniel INFANTE, Defendant and Respondent.

Page 689

[168 Cal.Rptr.3d 190] Tony Rackauckas, District Attorney, and Brian F. Fitzpatrick, Deputy District Attorney, for Plaintiff and Appellant.

Stephen M. Hinkle, Oceanside, under appointment by the Supreme Court, for Defendant and Respondent.

BAXTER, J.

Page 690

[318 P.3d 854] Under California law, possession of a firearm by a felon is a felony. (Pen.Code,[1] former § 12021, subd. (a)(1), as amended by Stats.2008, ch. 599, § 4, p. 4281 [now § 29800, subd. (a)(1), Stats.2010, ch. 711, § 6].) Unlawfully carrying a concealed firearm and unlawfully carrying a loaded firearm in public are ordinarily misdemeanors, but become felonies when committed by " an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22." (Former §§ 12025, subd. (b)(3), as amended by Stats.1999, ch. 571, § 2, p. 3961 [now § 25400, subd. (c)(3), Stats.2010, ch. 711, § 6], 12031, subd. (a)(2)(C), as amended by Stats.2009, ch. 288, § 1 [now § 25850, subd. (c)(3), Stats.2010, [168 Cal.Rptr.3d 191] ch. 711, § 6].) The question presented in this case is whether possession of a firearm by a felon, concededly a felony, constitutes " felonious criminal conduct" within the meaning of section 186.22, subdivision (a) so as to elevate to felonies the misdemeanor offenses of carrying that concealed firearm and carrying that loaded firearm in public. Resolving a conflict in the Court of Appeal, we conclude that possession of a firearm by a felon does qualify as " felonious criminal conduct" and therefore affirm the decision below.

[318 P.3d 855]BACKGROUND

In the early morning hours of April 1, 2010, a La Habra police officer pulled over a Jeep Cherokee driven by defendant Daniel Infante for a traffic violation. A search of the vehicle revealed a .22-caliber blue steel revolver loaded with hollow-point cartridges and a loaded nine-millimeter semiautomatic pistol. Based on reports of the occupants' prior encounters with police, their own statements and tattoos, and other information, a gang expert opined at the preliminary hearing that defendant and the passenger, David Jimenez, were active members of the " Headhunters" street gang.

Page 691

Defendant was charged by information with unlawfully carrying a concealed firearm in a vehicle by an active participant in a criminal street gang (former § 12025, subds. (a)(1), (b)(3); count 1), unlawfully carrying a loaded firearm in public by an active participant in a criminal street gang (former § 12031, subd. (a)(1), (2)(C); count 2), possession of a firearm by a felon (former § 12021, subd. (a)(1); count 3), and active participation in a criminal street gang (§ 186.22, subd. (a); count 4). The information further alleged that defendant had suffered three prior prison terms (§ 667.5, subd. (b)).

On September 9, 2011, defendant pleaded guilty to possession of a firearm by a felon (count 3) and active participation in a street gang (count 4) and admitted the prior prison term enhancements. The remaining charges were dismissed. At sentencing, however, the trial court granted defendant's motion to withdraw his plea, and the dismissed counts were reinstated. Five weeks later, the trial court dismissed the charges of unlawfully carrying a concealed firearm by an active gang participant (count 1) and unlawfully carrying a loaded firearm in public by an active gang participant (count 2), relying on In re Jorge P. (2011) 197 Cal.App.4th 628, 128 Cal.Rptr.3d 366( Jorge P. ).

On January 27, 2012, defendant entered into a plea bargain in which he pleaded guilty to counts 3 and 4 and admitted the three prior prison term enhancements in exchange for a promise of a two-year prison term. The sentencing date was continued.

The People appealed the order dismissing counts 1 and 2. The Court of Appeal, disagreeing with Jorge P., supra, 197 Cal.App.4th 628, 128 Cal.Rptr.3d 366, reversed in a published opinion. We granted review to resolve the conflict.

DISCUSSION

In 1996, the Legislature amended former section 12025, which defined the misdemeanor offense of unlawfully carrying a concealed firearm, and former section 12031, which defined the misdemeanor offense of unlawfully carrying a loaded firearm in public. (Stats.1996, ch. 787, §§ 2, 3, pp. 4152-4153.) As a result of the amendments, unlawfully carrying a concealed firearm and unlawfully carrying a loaded firearm in public became felonies " [w]here the person is an active participant in a criminal street ...


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