The California Supreme Court in San Francisco today reined in the circumstances in which a gang member can be convicted of a felony for carrying a loaded gun in public. Carrying a loaded firearm is public isnormally a misdemeanor offense with a penalty of six months in jail. But a 1988 state law provides that the crime can be upgraded to a felony, with a penalty of as much as three years in prison, if the defendant is “an active participant in a criminal street gang.” The law, known as the California Street Terrorism Enforcement Act, is aimed at reducing gang violence.
In today’s ruling, the state high court said prosecutors can’t use that provision of the law unless they prove the defendant was working with or aiding a gang in a separate felony. The panel said that proof of a separate felony is needed to meet the definition of participation in a criminal gang.
The court overturned the conviction of an Orange County man, Robert Lamas, an alleged gang member who was found guilty of a felony for carrying a loaded gun and sentenced to three years and eight months in prison for that and other crimes. Lamas was alleged to be a member of the Baker Street gang in Buena Park and was in rival gang territory when he threw a loaded gun into a planter box when being pursued by police in 2004. But he was alone and prosecutors did not prove he was engaged in any other gang activity.
The seven justices of the court unanimously agreed on overturning Lamas’s conviction. But two justices, Marvin Baxter and Carol Corrigan, said in a separate concurring opinion that they did so reluctantly. Baxter wrote that while the court’s conclusion was compelled by a related ruling in 2000, the earlier ruling “as a practical matter strips the statute of any meaningful utility as an anti-street crime measure.”
— Bay City News