P. v. Bender
While conducting a routine patrol in territory claimed by a gang, police officers saw a group of people, including appellant, standing on a basketball court. When someone shouted a warning about the presence of the police, the group scattered and ran. The police pursued them, and one of the officers saw appellant throw a gun into the street. After appellant was arrested, a broken Ecstasy pill was found in his pocket.
Appellant was convicted of a felony count of carrying a loaded firearm in public while an active participant in a street gang, with an enhancement for committing the crime for the benefit of a gang and with the intent to assist, further, or promote criminal conduct by gang members. He was also convicted of possessing a gun after being convicted of a misdemeanor (also with a gang enhancement), and of possessing a controlled substance while armed with a gun. We conclude that the prosecution failed to prove that appellant actively participated in a street gang while carrying the gun. We therefore reverse the felony gun possession conviction, and remand for further proceedings.
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