In re Jose P

In In re Jose P. (2003) 106 Cal.App.4th 458, the juvenile court found minor had committed home invasion robbery, false imprisonment, first degree burglary, and street terrorism. The court found true the allegation he had committed these crimes, with the exception of street terrorism, for the benefit of, at the direction of, or in association with a criminal street gang. ( 186.22, subd. (b)(1).) The court committed the minor to the California Youth Authority. The court calculated the maximum period of confinement as nine years for the robbery increased by 10 years for the gang enhancement and an additional eight months for the street terrorism offense. (Jose P., supra, 106 Cal.App.4th at p. 458.) On appeal minor argued section 654 prohibited the imposition of a separate term of confinement on the street terrorism offense. The court noted the instant robbery was not the only felonious act upon which the court could have based its finding minor had committed street terrorism because minor had also been found guilty of attempted robbery in a prior proceeding. (Jose P., supra, 106 Cal.App.4th at p. 470.) The Court indicated that even if minor's criminal liability for the street terrorism offense depended upon his participation in the robbery, the record supports a finding he harbored the separate intent and objective to participate in the gang. Accordingly, section 654 did not preclude separate punishment. (106 Cal.App.4th at p. 470.) While "the minor's intent and objective in violating section 186.22(a) necessarily must have been participation in the gang itself," his "intent and objective in committing the robbery was to take the property located in the home." (Jose P., supra, 106 Cal.App.4th at p. 471.) Accordingly, the court concluded: "While he may have pursued the two objectives simultaneously, the objectives were nevertheless independent of each other. Therefore, section 654 does not bar punishment for both the gang crime and the robbery." (Ibid.) In short, appellant, who was a Norteno gang member, argued the evidence of gang activity must be specific to a particular local street gang, not to the larger criminal organization This court said that evidence of gang activity satisfying the requirements of section 186.22 need not be specific to a particular subgroup of a criminal street gang, but may be established by evidence of gang-related criminal activity by members of any of the affiliated subgroups. (Id. at pp. 467-468.)