Application of California Penal Code Section 654 in the Context of a Gang Participation Charge

In People v. Herrera (1999) 70 Cal.App.4th 1456, two gangs engaged in a series of retaliatory shootings. In one of the shootings, shots were fired at a house occupied by members of the defendant's gang. One of the members of defendant's gang then drove and picked up the defendant, who explained to his girlfriend that "his 'home boys were after the guys.'" (People v. Herrera, supra, 70 Cal.App.4th at p. 1461.) The defendant and his cohort then drove by a house identified with the rival gang, made a U-turn, and drove by again, firing shots both times. On the first pass, two people were hit. (Ibid.) As a result, among other things, the defendant was convicted of one count of gang participation and two counts of attempted murder. (Herrera, supra, at p. 1462.) The court held that section 654 did not require the trial court to stay the gang participation term. The Herrera court explained: "'Multiple punishment . . . may be imposed where the defendant commits two crimes in pursuit of two independent, even if simultaneous, objectives. ' " (Herrera, supra, at p. 1466.) The Herrera court went on to explain that "The characteristics of attempted murder and street terrorism are distinguishable . . . . In the attempted murders, Herrera's objective was simply a desire to kill. For these convictions, the identities (or gang affiliations) of his intended victims were irrelevant." (Herrera, supra, at pp. 1466-1467.) At this point, the court noted that there was "sufficient evidence to establish the specific intent to kill required for both counts of attempted murder. " (Id. at p. 1467.) The Herrera court continued, "under section 186.22, subdivision (a) the defendant must necessarily have the intent and objective to actively participate in a criminal street gang. However, he does not need to have the intent to personally commit the particular felony (e.g., murder, robbery or assault) because the focus of the street terrorism statute is upon the defendant's objective to promote, further or assist the gang in its felonious conduct, irrespective of who actually commits the offense. For example, this subdivision would allow convictions against both the person who pulls the trigger in a drive-by murder and the gang member who later conceals the weapon, even though the latter member never had the specific intent to kill. Hence, section 186.22, subdivision (a) requires a separate intent and objective from the underlying felony committed on behalf of the gang. The perpetrator of the underlying crime may thus possess 'two independent, even if simultaneous, objectives,' thereby precluding application of section 654. " (Herrera, supra, 70 Cal.App.4th at pp. 1467-1468.) At this point, the court found sufficient evidence that the defendant "intended to aid his gang in felonious conduct, irrespective of his independent objective to murder." (Id. at p. 1468.) Finally, the court added: "If section 654 were held applicable here, it would render section 186.22, subdivision (a) a nullity whenever a gang member was convicted of the substantive crime committed in furtherance of the gang. 'The purpose of section 654 "is to insure that a defendant's punishment will be commensurate with his culpability." ' We do not believe the Legislature intended to exempt the most culpable parties from the punishment under the street terrorism statutes." (Herrera, supra, at p. 1468.)