Wednesday, November 7, 2018
Innocence of Felony Requires Reversal of Gang Activity Charge—Court of Appeal
By a MetNews Staff Writer
The Fourth District Court of Appeal has reversed two men’s convictions for active participation in a criminal street gang because there was no reason to believe that one of the men, a passenger in a stolen car, had aided and abetted his compatriot in driving it.
The unpublished opinion by Justice David A. Thompson of Div. Three was filed Monday.
It reverses the convictions of Danny Mendoza and Mynor D. Galindo—both members of the Alley Boys gang in Santa Ana—for violating Penal Code §186.22(a) which prohibits the promotion or assistance of a fellow gang member in felonious conduct.
The “felonious conduct” that was charged was a violation of Vehicle Code §10851(a), prohibiting the unlawful taking or driving of an automobile. Specifically, Mendoza was charged with committing the crime while Galindo, the passenger, was charged with aiding and abetting.
An Orange County jury found Mendoza guilty of the underlying charge, but found that Galindo was not guilty of helping him. Nevertheless, it found both men guilty of active participation in a criminal street gang.
Felonious Criminal Conduct
Thompson, citing case law interpreting §186.22, wrote:
“Defendants were convicted in count 3 of active participation in a criminal street gang on the date Mendoza drove and Galindo was a passenger in the Toyota….This offense has three elements: ‘First, active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; second, knowledge that the gang’s members engage in or have engaged in a pattern of criminal gang activity; and third, the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang.’…
“Defendants do not challenge the first two elements of the gang participation offense. The issue is whether there was substantial evidence the underlying felonious conduct—violation of Vehicle Code section 10851, subdivision (a)—was committed by Mendoza and Galindo, notwithstanding Galindo’s acquittal of the Vehicle Code charge and the jury finding Mendoza’s unlawful driving of the vehicle was not done for the benefit of the gang.”
Aiding and Abetting
The jurist continued:
“As there was no evidence Mendoza or Galindo took the Toyota on May 24, the defendants’ liability for a violation of the Vehicle Code section turned on Mendoza’s driving the vehicle the day after it was taken and Galindo being a passenger in the vehicle while Mendoza drove. Given there was no evidence Galindo drove the vehicle, his liability for the Vehicle Code violation depended upon evidence he aided and abetted Mendoza in the act of driving the Toyota….
“Of course, merely being the passenger in a vehicle taken without the owner’s permission does not rise to the level of aiding and abetting.”
“Galindo’s flight from the vehicle at the conclusion of the chase may indicate a consciousness of guilt, but it is not, in this case, substantial evidence that Galindo aided and abetted Mendoza in unlawfully driving the Toyota.…This is especially so given Galindo was unlawfully in possession of a firearm at the time he fled and the gang expert testified gang members in possession of a firearm will run from police. To infer flight was caused not by Galindo’s desire to avoid being caught with a firearm (a felony), but by consciousness of guilt based on his knowing the vehicle he was a passenger in was being driven without the owner’s consent and that he must have aided and abetted the driver in the driving, is a stretch.”
The case is People v. Mendoza and Galindo, G054561.
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