P. v. Gonzalez
A jury convicted Alejandro Gonzalez of second degree robbery (count 1; Pen. Code, §§ 211, 212.5, subd. (c); all further statutory references are to this code), assault with a firearm (count 2; § 245, subd. (a)(2)), felon in possession of a firearm (§ 12021, subd. (a)(1)), misdemeanor trespass (§ 602.5, subd. (b)) as a lesser-included offense of gang-related trespass (§ 186.22, subd. (d)), and active gang participation (count 5; § 186.22, subd. (a); hereafter sometimes “street terrorism,†“the (a) count,†or “substantive gang offenseâ€). The jury rejected gang enhancement allegations (§ 186.22, subd. (b)), but found firearm allegations true on count 1 (§ 12022.53, subd. (c)) and count 2 (§ 12022.5, subd. (a)). In a bifurcated proceeding, the trial court found prior conviction allegations true for a prior prison term (§ 667.5, subd. (b)), a prior serious felony conviction (§ 667.5, subd. (a)(1)), and a prior “strike†conviction (§§ 667, subds. (d) & (e)(1), 1170.12, subds. (b) & (c)(1)).
On appeal, Gonzalez challenges the sufficiency of the evidence to support his conviction for active gang participation because he acted alone in committing his offenses. Alternatively, he argues the federal and state Constitutions bar for a sole perpetrator conviction of street terrorism or, at a minimum, section 654 required the trial court to stay sentencing on the (a) count. He also contends no substantial evidence established the primary activities of his gang, a predicate for any gang-related conviction or enhancement, and he insists the trial court violated his confrontation rights by permitting the prosecution’s gang expert to testify concerning his gang’s primary activities.
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