P. v. Pineda
Co-defendants John Felipe Pineda (Pineda) and Eduardo Javier Zavala (Zavala) appeal after the jury convicted them of two counts of second degree robbery, two counts of assault with a deadly weapon and force likely to produce great bodily injury, and one count of active participation in a criminal street gang. On appeal, both defendants argue the trial court should have stayed the sentence for active participation in a criminal street gang pursuant to Penal Code section 654 rather than ordering it to run concurrently with the sentence for one count of robbery.[1]
The Attorney General concedes the argument, and we agree. The California Supreme Court’s recent decision in People v. Mesa (2012) 54 Cal.4th 191, which held that a defendant may not be punished for both the substantive offense of active participation in a criminal street gang and the requisite underlying felony used to satisfy the gang participation element of the crime, compels this result. Accordingly, we stay the sentence imposed for active participation in a criminal street gang and affirm the judgment as modified.
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