The punishment for
the substantive street gang offense must be stayed pursuant to Penal
Code section 654 when the sentences on other crimes are enhanced with
the street gang enhancement. The issue of whether a defendant can be
punished for both the substantive offense of street terrorism (Pen.
Code, § 186.22, subd. (a)) and another felony where the other felony
is the "felonious criminal conduct" of the gang that is
used to establish the charge of street terrorism has not been
consistently decided and is pending in the California Supreme Court
in People v. Mesa (2010) 186 Cal.App.4th 773, review granted October
27, 2010, S185688. In a concurring majority opinion, the court
reasoned that a determination of whether a defendant can be punished
for two crimes or, alternatively, must be punished for only one
depends on whether punishing the defendant for just one of the crimes
"insures that the defendant's punishment will be commensurate
with his culpability." (People v. Perez (1979) 23 Cal.3d 545,
551 [alterations omitted].) Here, Penal Code section 654 prohibits
punishment pursuant to Penal Code section 186.22, subdivision (a)
because the defendants were already punished for the same gang aspect
of the crimes when their sentences were enhanced pursuant to
subdivision (b)(4)(C). The concurring majority opinion declined to
follow People v. Herrera (1999) 70 Cal.App.4th 1456.
© 2011 Darren Chaker. All Rights Reserved.
