P. v. Flores
Defendant and appellant Daniel Edward Flores was charged by information with two counts: assault by means of force likely to produce great bodily injury (count 1; Pen. Code, § 245, subd. (a)(1));[1] and active participation in a criminal street gang (count 2; § 186.22, subd. (a)).[2] The assault charge under count 1 was based upon an alleged assault against Matthew Carranza. An element of the active gang participation crime under count 2 is that defendant willfully promoted, furthered, or assisted in felonious criminal conduct by members of a criminal street gang. In this case, the specific felony relied on by the prosecution to establish this element was the assault against Carranza alleged in count 1.
A jury acquitted defendant of the assault alleged in count 1 and found the related enhancement allegations not true. The jury found him guilty of active participation in a criminal street gang under count 2. The court sentenced him to one year four months in prison, suspended the sentence, and granted defendant three years’ probation.
In this appeal, defendant contends there is insufficient evidence to sustain the conviction on count 2 for the sole reason that the jury acquitted him of the assault charge in count 1. For the reasons expressed below, we conclude that the acquittal on count 1 is not inconsistent with, and does not preclude, the jury’s verdict on count 2. We therefore affirm the judgment.
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