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Rejecting the BIA's approach in E.E. Hernandez, the Ninth Circuit held that a gang enhancement under California Penal Code section 186.22(b)(1) does not transform a conviction into a crime involving moral turpitude if the offense was not one already.

Here, Hernandez-Gonzalez was convicted of possessing a billy club, which generally would not involve moral turpitude because the offense does not involve threatening or hurting anyone, but rather mere possession.  The Board found, in an unpublished decision, that the gang enhancement made Hernandez-Gonzalez's offense a crime involving moral turpitude.  This is consistent with the Board's later published decision in E.E. Hernandez. E.E. Hernandez reasoned that the specific intent to promote street gang activity , which is required for a PC 186.22 enhancement, is always morally turpitudinous because street gang activity is morally turpitudinous.

The Ninth Circuit, however, found that California law permits a gang enhancement where the only street gang activity being promoted is the underlying crime itself, which need not involve moral turpitude.  The Ninth Circuit pointed to California court decisions applying the gang enhancement to weapons offenses where the weapons were discovered during probation or other searches, such as during traffic stops, that did not involve any actual use of the weapon.  The Ninth Circuit held that weapons possession in such circumstances is not a morally turpitudinous.  It is criminal, but it does not involve the type of evil intent required for a crime involving moral turpitude.

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