”Active Participation” in a Gang in California

In People v. Castenada (2000) 23 Cal.4th 743, defendant appealed his felony conviction for robbery, related offenses, and actively participating in a criminal street gang (section 186.22(a)), arguing that insufficient evidence was presented for the jury to reasonably conclude that he was an active participant in a criminal street gang.

The Supreme Court, affirming the judgment of the Court of Appeal upholding defendant's conviction, held that a finding of "active participation" under section 186.22(a) requires a defendant to have more than a nominal or passive involvement with the gang, know of the gang's pattern of criminal activity, and aid and abet a separate felony committed by gang members. (Castenada, supra, 23 Cal.4th at pp. 749-750.)

The court found the evidence demonstrated Castenada's involvement with the gang was more than nominal or passive; that he joined other gang members in committing a robbery using a handgun; and that on at least seven previous occasions he was observed by police officers in the presence of known gang members, bragging to officers on three of those occasions that he "kicked back" with the gang. (Castenada, supra, 23 Cal.4th at pp. 745-746.)

Thus, the Castaneda court held that "active participation" in a gang, within the meaning of section 186.22(a), requires mere participation in criminal activity with gang members, with the knowledge that they are a criminal street gang. (Castenada, supra, 23 Cal.4th at p. 749.)