“Felonious Criminal Conduct” Under California’s Gang Enhancement Statutes Elevates Misdemeanor Offense to a Felony

Overview: The California Supreme Court has ruled that possession of a firearm by a felon constituted “felonious criminal conduct” within the meaning of California’s gang enhancement statutes, thereby elevating the ordinarily misdemeanor offense to a felony. In California, possession of a firearm by a felon is a felony. However, unlawfully carrying a concealed firearm and unlawfully carrying a loaded firearm in public are ordinarily misdemeanors.

Training Points: This ruling is beneficial to all law enforcement officers, particularly those assigned to gang enforcement. When dealing with a suspect who is a validated gang member and who is being charged with possession of a firearm by a felon, this case makes clear that carrying that same concealed firearm and/or carrying a loaded firearm in public elevates those misdemeanor charges to felonies for purposes of the gang enhancement condition requiring “felonious criminal conduct.”

Summary Analysis: In People v. Infante, a search of Infante’s vehicle revealed a loaded .22-caliber revolver and a loaded nine-millimeter semiautomatic pistol. At the preliminary hearing, a gang expert testified that Infante was an active gang member. After he was charged with several weapons offenses, he pled guilty to possession of a firearm by a felon and active participation in a street gang. Infante argued that his previous felony conviction for possession of a firearm could not be used to elevate the misdemeanor gun offenses to felonies because “the same act of gun possession” cannot be used to establish the substantive gang charge and elevate two other misdemeanor gun offenses to felony gun offenses.

The California Supreme Court disagreed, holding that the “felonious conduct” requirement under the gang enhancement statutes did not have to be “separate,” “distinct” or “different” from the conduct supporting the misdemeanor gun offense. Therefore, a gang member who carries a loaded firearm in public can be charged with a felony.