P. v. Bustamante
Appellant Dominique Bustamante was charged with two counts of sale of methamphetamine (counts 1 & 3), two counts of active participation in a criminal street gang (counts 2 & 5), and one count of transporting methamphetamine for sale (count 4).
The jury found Bustamante guilty as charged on all counts. He admitted a prior prison term allegation. On August 22, 2011, Bustamante was sentenced to a total term of six years eight months, with the terms for some counts stayed and others to run concurrently.
Bustamante appealed, contending there is insufficient evidence to support the Penal Code[1] section 186.22, subdivision (a) (section 186.22(a)) convictions in counts 2 and 5, the substantive offense of active participation in a criminal street gang. Specifically, he contends there is insufficient evidence establishing that the underlying drug offenses were committed with another gang member. As to count 2, the February 18, 2010, drug sale, the People concede the issue and we accept the concession. As to count 5, we will conclude there is sufficient evidence to support the verdict that the February 4, 2010, drug sale involved another gang member. The count 2 conviction is therefore reversed. In all other respects, the judgment is affirmed.
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