In People v. Castenada (2000) 23 Cal.4th 743, the California Supreme Court construed the phrase "'actively participates in any criminal street gang'" as used in Penal Code Section section 186.22, subdivision (a), to mean "involvement with a criminal street gang that is more than nominal or passive."
The court relied on the usual and ordinary meaning of "'actively'" as "'being in a state of action; not passive or quiescent' " and "'characterized by action rather than contemplation or speculation' " and "'participates'" as "'to take part in something (as an enterprise or activity).' " (Castaneda, supra, at p. 747.)
Section 186.22, subdivision (a), provides:
"Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years."
In Castenada, the defendant committed an armed robbery and attempted robbery with two companions in Goldenwest gang territory. (Castenada, supra, 23 Cal.4th at p. 745.)
In the 14 months prior to the crimes, police officers saw the defendant in the presence of known Goldenwest gang members seven times. On at least three of those occasions, the police gave the defendant written notice that Goldenwest was a criminal street gang, and, at those times, the defendant "bragged to the officers that he 'kicked back' with Goldenwest members and 'backed them up,' but he denied having been initiated into the gang." (Id. at p. 746.)
A gang expert testified the robbery was "typical of crimes committed by Goldenwest gang members, who see their crimes as a means of putting local residents on notice of the gang's control of the neighborhood." (Ibid.)
The Supreme Court concluded this was sufficient evidence to show the defendant's involvement with the Goldenwest gang was "more than nominal or passive." (Castenada, supra, 23 Cal.4th at p. 752.)
The court relied in part on the fact that the defendant did not dispute that his offenses promoted, furthered, or assisted, the criminal conduct of the Goldenwest gang and he did not contest the finding that the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang.
The court explained:
"To summarize, through evidence of the crimes the defendant here committed, his many contacts on previous occasions with the Goldenwest criminal street gang, and his admissions by bragging to police officers on those occasions of gang association or membership, the prosecution presented sufficient proof that the defendant 'actively participated' in a criminal street gang within the meaning of section 186.22, subdivision (a)." (Castenada, supra, at p. 753.)