Return to CALJIC Part 5-8 – Contents
F 6.50 n1 Gang Statute Held Constitutional.
The constitutionality of PC 186.22 and the terms utilized therein has been upheld in People v. Green (91) 227 CA3d 692, 698-704 [278 CR2d 140]; In re Alberto R. (91) 235 CA3d 1309, 1321-24 [1 CR2d 348]; and People v. Gamez (91) 235 CA3d 957, 971-78 [286 CR 894]. However, Gamez recognizes two elements for conviction under PC 186.22(b): 1) the defendant committed the crime for the benefit of, at the direction of or in association with the gang; and 2) the defendant had the specific intent to promote, further or assist in any criminal conduct by gang members. (See FORECITE F 17.24.2a.)
F 6.50 n2 Gangs: Homicide Not Foreseeable Risk.
In People v. Godinez (92) 2 CA4th 492, 502-503, fn 6 [3 CR2d 325], the court rejected the prosecution’s argument that homicide is as a matter of law a foreseeable consequence of a gang attack.
F 6.50 n3 Limitations On Expert Testimony Regarding Gangs.
See FORECITE F 1403 Note 2.
F 6.50 n4 Gangs: Grand Theft Of Vehicle Added To Statute.
Effective 1/1/94, grand theft of a vehicle (PC 487h) was added to the crimes upon which criminal gang liability may be predicated under PC 186.22.
However, PC 487h was repealed January 1, 1997, and PC 182.22 was not amended to reflect that change.
F 6.50 n5 Admissibility Of Gang Affiliation Evidence.
“[E]vidence of a defendant’s gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged [. . .] and thus should be carefully scrutinized by trial courts.” (People v. Carter (2003) 30 C4th 1166, 1194.) Subject to EC 352, gang affiliation and activity is admissible when relevant to an issue of motive or intent. (People v. Funes (94) 23 CA4th 1506, 1518 [28 CR2d 758]; compare People v. Avitia (2005) 127 CA4th 185 [prejudicial error to admit evidence of gang graffiti found in defendant’s bedroom, where no PC 186.22(b)(1) gang enhancement was alleged, and there was no evidence the charged crimes were related to any gang activity].)
Due to the high potential of prejudice, the California Supreme Court has condemned the introduction of “evidence of gang membership if only tangentially relevant, given its highly inflammatory impact.” (People v. Cox (91) 53 C3d 618, 660 [280 CR 692].) Evidence of gang membership has been admitted to prove bias, provided it is not cumulative to other properly admitted and less inflammatory evidence. (See People v. Cardenas (82) 31 C3d 897, 904-905 [184 CR 165]; see also People v. Ruiz (98) 62 CA4th 234, 240 [72 CR2d 572].)
However, when other evidence has established a relationship between the witness and the defendant, common membership evidence is cumulative and, if prejudicial, inadmissible. (People v. Cardenas, supra, 31 C3d at 904; People v. Munoz (84) 157 CA3d 999, 1012-13 [204 CR 271]; People v. Maestas (93) 20 CA4th 1482, 1494 [25 CR2d 644].)
(See FORECITE F 2.80 n6.)
For briefing on this issue, see Brief Bank # B-975.
STRATEGY NOTE:
Gang evidence may be subject to constitutional challenge as prejudicial bad character evidence, see FORECITE PG VII(C)(20).
F 6.50 n6 Federal Constitution Requires Unanimity As To Predicate Offenses.
(See FORECITE F 17.01 n15.)
F 6.50 n7 Criminal Street Gang Activity Broadened.
In urgency legislation effective 4/94, the definition of criminal street gang activity was broadened to include carjacking, money laundering, felony vandalism and other offenses. (SB 480, McCorquodale, Ch. 47.) [A copy of the new statute is available to FORECITE subscribers. Ask for Legislative Bank # L-1001.)
F 6.50 n8 Gang Offense: Pattern Of Criminal Activity Must Occur Prior To The Charged Offense.
Although not expressly required in PC 186.22(e), the cases suggest that the two predicate offenses must have been committed prior to the charged offense. (See People v. Gamez (91) 235 CA3d 957, 976 [286 CR 894]; In re Nathaniel C. (91) 228 CA3d 990, 1002 [279 CR 236].) [Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank No. B-631.]
People v. Muhamed DEPUBLISHED (96) 41 CA4th 270 [498 CR2d 687] reprinted at 50 CA4th 403, held that a “pattern of criminal gang activity” within the meaning of PC 186.22(e) may be shown exclusively from the currently charged offenses. (See also, People v. Olguin (94) 31 CA4th 1355, 1385-86 [37 CR2d 596] [holding that the currently charged offense can be considered as one of the offenses establishing a pattern of criminal gang activity].)
However, “whenever the prosecution relies on the charged offense to establish one of the `two or more’ offenses necessary to show a pattern of criminal gang activity (PC 186.22(e)), the prosecution must prove that the offense was gang related.” (People v. Gardeley (96) 14 C4th 605, 625 fn. 12.
F 6.50 n9 Gang Offense: No Requirement Of Threat Of Continued Criminal Activity.
People v. Olguin (94) 31 CA4th 1355, 1385-86 [37 CR2d 596] rejected the defendant’s argument that the instruction defining “pattern of criminal activity” was incomplete and should have included a requirement that the gang’s criminal actions amount to or pose a threat of continued criminal activity.
F 6.50 n10 Gangs: Expert’s Testimony Must Be Based On Personal Knowledge Or Actual Evidence.
“When expert opinion is offered, much must be left to the trial court’s discretion.” (People v. Carpenter (97) 15 C4th 312, 403.) Although an expert may base an opinion on hearsay, the trial court may exclude from the expert’s testimony “any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value.” (People v. Montiel (93) 5 C4th 877, 919.)
People v. Gardeley (96) 14 C4th 605, 619-20 [59 CR2d 356] held that a gang expert may reveal information on which he relied in forming his expert opinion, including hearsay. (See also People v. Valdez (97) 58 CA4th 494 [68 CR2d 135]; but see Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] [testimonial hearsay inadmissible where declarant is unavailable and never confronted by defendant].) The jury may rely on the hearsay only for the purpose of evaluating the expert testimony. Such testimony is not admissible to prove the defendant’s guilt or innocence of the predicate acts required to be shown under PC 186.22(f) regarding the definition of a criminal street gang. The prosecution must still establish by independent evidence the additional statutory requirement that the gang’s members “individually or collectively engage in or have engaged in a pattern of criminal gang activity” per PC 186.22(f).
Green v. State (Ga. 1996) 466 SE2d 577 [266 Ga. 237] held that there could be no conviction for “street gang terrorism” absent proof of a pattern of criminal gang activity. It was not enough for a police officer to testify, based on information from other investigators, that two gang-related homicides in town were attributed to a particular gang or that several crimes were gang-related, but without specifying the dates of the crimes.
Hence, when hearsay evidence of the incident is presented as a basis for the expert’s opinion, it should be made clear to the jury that such hearsay is not admitted for the truth of the matter asserted and cannot be relied upon to convict the defendant of a gang participation substantive offense and/or a gang-related enhancement.
F 6.50 n11 May Expert Testimony Be Used To Prove “Primary Activity” Element Of Criminal Gang Offense?
People v. Loeun REV GTD/DEPUBLISHED (7/13/95, S046514) 33 CA4th 1509 [40 CR2d 160]. See opinion below. Issue not addressed on review. [A copy of the Loeun opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-234.]
(See FORECITE F 6.50 n10.)
F 6.50 n12 Single Incident To Prove “Pattern” Of Gang Activity.
(See FORECITE F 6.50 n15.)
F 6.50 n13 Prior Juvenile Adjudications Inadmissible Re: Gang Activity.
Review was granted in People v. Gonzales UNPUBLISHED (1996) 40 CA4th 1492 reprinted at 49 CA4th 1823 to consider whether, and if so to what extent, prior convictions may be used to prove the existence of a “pattern of criminal gang activity.” The Court of Appeal in Gonzales held that prior juvenile adjudications were inadmissible under People v. Wheeler (92) 4 C4th 284 [14 CR2d 418] to prove the required pattern of criminal gang activity as required by PC 186.22(b)(1). However, Gonzales was dismissed on May 21, 1997 “in light of an intervening change in the controlling legislation” which added a “sustained juvenile petition” to the list of predicate offenses. (PC 186.22(e), amended by Stats. 1996, ch. 982, § 1; cf. EC 452.5, added by Stats. 1996, ch. 642, § 3.)
F 6.50 n14 Gang Offense: PC 186.22(c) Convictions Cannot Stand.
Prior to 1994, PC 186.22 contained descriptions of two substantive offenses and one enhancement. PC 186.22(a) described a substantive offense characterized by “felonious criminal conduct” and active participation in a gang. PC 186.22(b) described an enhancement which was applicable where a felony was committed for the benefit of a gang. PC 186.22(c) read as follows: “any person who is convicted of a public offense punishable as a felony or a misdemeanor which is committed for the benefit of, at the direction of, or in association with, any criminal street gang, with the specific intent to promote, further, or assist in any felony conduct by gang members, shall be punished by imprisonment in county jail not to exceed one year, or by imprisonment in state prison for one, two, or three years ….”
On 4/19/94, by urgency measure, the legislature rewrote PC 186.22(c) to eliminate the substantive offense described therein. Because the offense previously described in PC 186.22(c) was repealed without any savings clause or without the enactment of another law under which the offender may be punished, in any case which is not yet final on appeal the convictions under PC 186.22(c) are subject to abatement. (See People v. Chany DEPUBLISHED (96) 42 CA4th 667 [49 CR2d 841] reprinted for tracking pending review at 47 CA4th 63; see also, People v. Rossi (76) 18 C3d 295, 300 [134 CR 64].)
F 6.50 n15 Pattern Of Criminal Gang Activity: Propriety Of Relying Exclusively On Currently-Charged Offenses.
People v. Muhamed DEPUBLISHED (95) 41 CA4th 270 [48 CR2d 687], reprinted at 50 CA4th 403 held that a “pattern of criminal gang activity” within the meaning of PC 186.22(e) may be shown exclusively from the currently-charged offenses. However, even where a “pattern” is shown for the current offense, one incident is unlikely to satisfy the “primary activity” element of the statute which is essential to conviction under the statute. (See e.g., People v. Zermeno (99) 21 C4th 927 [89 CR2d 863] [required two offenses for gang enhancement can not be shown by currently-charged offense involving an accomplice]; see also People v. Vo REV GTD/DISD/DEPUB (2005) 128 CA4th 733 [proof that one gang member committed a single crime and was aided and abetted in the commission of that crime by another gang member establishes only one predicate offense]; People v. Gamez (91) 235 CA3d 957, 970-72 [286 CR 894]; In re Elodio O. (97) 56 CA4th 1175, 1180 [66 CR2d 95]; but see People v. Loeun (97) 17 C4th 1 [69 CR2d 776] [criminal gang activity is proven by offense charged and proof of another offense committed on the same occasion by a fellow gang member].)
F 6.50 n16 Use Of Documentary Evidence To Prove Gang Offense.
People v. Wheeler (92) 4 C4th 284, 298 [14 CR2d 418] held that “a judgment that is offered to prove the matters determined by the judgment is hearsay evidence.” Hence when documentary evidence of a judgment of a conviction is offered to prove that the defendant committed the crime of which he was convicted, the judgment is objectionable as hearsay. (See People v. Gardeley (96) 14 C4th 605, 624 fn 11, [59 CR2d 356] [recognizing but not resolving the issue]; but see Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] [testimonial hearsay inadmissible where declarant is unavailable and never confronted by defendant].)
F 6.50 n17 Active Gang Participation Must Be Current.
PC 186.22(a) applies to “[a]ny person who actively participates in any criminal street gang …” This requirement suggests a distinction between current active participation and active participation at some earlier time. A defendant once convicted of participating in a criminal street gang may either continue that participation or end it. If he no longer participates, he becomes inactive or only nominally associated with the group. If, on the other hand, he continues that participation, he could be prosecuted again for participating in a criminal street gang. In this second prosecution, the pattern of criminal activity that defines the gang may be established by the same predicate crimes relied on in the first prosecution, but his current active participation in the gang would have to be proven by evidence of some new gang-related conduct. Otherwise, a defendant could be subjected to a series of prosecutions based upon the same predicate crimes and nothing more. Additionally, the requirement of willful promotion, furtherance, or assistance also connotes current actions by the defendant, not merely actions taken sometime in the past. “Current” would mean on or about the date alleged in the charging document. [A depublished opinion addressing this issue is available to FORECITE subscribers (People v. Marroquin A065808). Ask for Opinion Bank # O-228.] NOTE: See FORECITE F 6.50b for an instruction defining “actively participates” within the meaning of PC 186.22.
F 6.50 n18 Gang Evidence As Rebuttal To Third Party Defense.
When the defendant relies on a third party defense which includes evidence of a confession by a third party who claims to not know the defendant, the prosecution may, in rebuttal, present evidence that the two were members of the same criminal street gang, thus suggesting that the confession was fabricated. (People v. Ruiz (98) 62 CA4th 234 [72 CR2d 572].)
F 6.50 n19 “Engaged In” vs. “Committed.”
(See FORECITE F 2.23.1 n1.)
F 6.50 n20 Distinction Between Substantive Gang Offense (PC 186.22(a)) And Gang Enhancement (PC 186.22(b)).
The gang enhancement (PC 186.22(b)) requires the following two elements which are not required for a substantive gang violation (PC 186.22(a)): (1) the underlying offense must be committed “for the benefit of, at the direction of, or in association with” the criminal street gang; and (2) the offense must be committed “with the specific intent” to aid the gang’s criminal conduct. (See PC 186.22(b).) Therefore, it is improper to use CJ 6.50 to instruct when the enhancement is charged. (See FORECITE F 17.24.1a for an instruction which includes the required elements.) For example, in People v. Valencia UNPUBLISHED (F026467) the PC 186.22(b) gang enhancement was reversed because the trial court instructed on substantive gang offense per PC 186.22(a). [See Opinion Bank # O-250 and Brief Bank # B-805 for the briefing and opinion in People v. Valencia UNPUBLISHED (F026467).]
F 6.50 n21 Gang Statute Applies To Perpetrator As Well As Aider And Abettor.
People v. Ngoun (2001) 88 CA4th 432, 436 [105 CR2d 837] held that the substantive offense of actively promoting, furthering or assisting in criminal conduct by a gang (PC 186.22(a)) may be applied to actual perpetrators of offenses, if committed for the benefit of the gang. In Ngoun the court held that a defendant who killed a rival gang member to maintain gang respect could be convicted of violating PC 186.22(a), as well as murder. (But see People v. Green (91) 227 CA3d 692, 703-04 [278 CR 140] [defendant must be aider and abettor to be convicted under PC 186.22(a)]; People v Castenada (2000) 23 C4th 743, 749 [97 CR2d 906] [“[A] person who violates section 186.22(a) has also aided and abetted a separate felony offense committed by gang memebers, as the Court of Appeal in Green…acknowledged].) The Ngoun Court suggested that the CALJIC committee review CALJIC 6.50, which uses language suggesting that the provision only applies to aiders and abettors.
F 6.50 n22 Gangs: Whether Proposition 21 Violates Separation Of Powers.
Manduley v. Superior Court (2002) 27 C4th 537 [117 CR2d 168] held that Proposition 21 does not violate the separation of powers clause of the California Constitution. (Article III, § 1.)
F 6.50 n23 Gangs: PC 186.22(d) Is Not A Separately Chargeable Crime.
(See In re Robert L. (2003) 30 C4th 894 [PC 186.22(d) (added by Proposition 21) is an alternate penalty provision rather than a sentence enhancement or substantive offense].)
F 6.50 n24 Gang Offender Registration (PC 186.30).
See In re Jorge G. (2004) 117 CA4th 931 [requiring a defendant or minor to give information about fellow gang members would violate privilege against self incrimination].
(See FORECITE F 6.50 n28.)
F 6.50 n25 Gangs: Ten-Year Gang Enhancement Improper Where Defendant Already Sentenced To Life For Attempted Second Degree Murder.
In People v. Montes (2002) 96 CA4th 518 [116 CR2d 908] the court found PC 186.22(b) to be ambiguous and construed its phrase “felony punishable by imprisonment in the state prison for life“ to include an enhancement that results in an indeterminate life term for what otherwise would be a felony punishable by a determinate term of less than life.
F 6.50 n26 Gang Conviction Based Entirely On Speech And Association With Another Violates The First Amendment.
See McCoy v. Stewart (9th Cir. 2002) 282 F3d 626.
6.50 n27 Gangs: Testimony Identifying Group As Gang.
(See In re Jose P. (2003) 106 CA4th 458 [130 CR2d 810] [expert’s testimony that the alleged gang was an ongoing association of around 600, identified by the color red and number 14, whose primary activity was the commission of criminal acts, two of which were described, was sufficient to establish that the gang was a criminal street gang]; but see People v.Valdez (97) 58 CA4th 494 [68 CR2d 135] [expert testimony that Nortenos is not a gang].)
F 6.50 n28 Criminal Street Gangs: Gang Member Registration Law Unconstitutionally Vague (PC 186.30).
People v. Sanchez (2003) 105 CA4th 1240 [130 CR2d 219] held that the California street gang registration law (PC 186.30 and PC 186.32) is unconstitutionally vague. In Sanchez the defendant challenged a court order requiring the defendant to list places he frequented. The court held that, although a list of places a defendant frequents would assist the agencies in finding the defendant, the order did not give the defendant sufficient notice of how often he must visit a place before he must include it on the list.
F 6.50 n29 Gang Enhancement (PC 186.22(d)) Applies To Misdemeanors.
(See In re Robert L. (2003) 30 C4th 894; but see dissenting opinion of Kennard, J.)
F 6.50 n30 Multiple Crimes From A Single Occasion: Predicate Crimes For Gang Enhancement (PC 186.22(b)).
(See FORECITE F 17.02 n26.)
F 6.50 n31 Gangs: Admissibility Of Gang Profile Evidence.
For briefing on this issue, see Brief Bank # B-975.
F 6.50 n32 Gang Evidence: Limiting Instruction.
For briefing on this issuesee Brief Bank # B-975; see also Brief Bank # B-654, Argument IV(A).
F 6.50 n33 Admissibility Of Alleged Tattoo Which Predates Gang Affiliation.
For briefing on this issue search for Brief Bank # B-975.
F 6.50 n34 Gangs: Crime By Aider And Abettor Cannot Be Predicate Offense For “Pattern Of Criminal Gang Activity.”
The Supreme Court has determined that a crime committed by an aider and abettor does not qualify as a separate crime and thus may not be used to satisfy the statutory requirement of two or more predicate offenses to establish the “pattern of criminal gang activity” under the STEP Act. (PC 186.22(e); People v. Zermeno (99) 21 C4th 927, 932.
F 6.50 n35 Statements By Defendant To Expert Not Admissible For The Truth.
See FORECITE F 332 Note 26.
F 6.50 n36 Prejudicial Impact Of Gang Evidence In Non-Gang Case
See FORECITE F 1403 Note 17.
F 6.50a
Criminal Street Gangs
(PC 186.22(a))
ALERT: On March 8, 2000 the voters passed Proposition 21 which made major revisions to the California Street Terrorism Enforcement and Prevention Act (STEP Act), created new registration requirements for persons convicted of gang-related offenses, and expanded the priors that will qualify as strikes for the purposes of the Three Strikes law. Additionally, the definition of “serious” felonies contained in PC 1192.7(c) was expanded to include any first degree burglary; unlawful bodily injury on the victim or another person; grand theft involving a firearm; carjacking; any felony offense which would also constitute a felony violation of PC 186.22; assault with the intent to commit mayhem, rape, sodomy, or oral copulation, in violation of PC 220; throwing acid or flammable substances, in violation of PC 244; assault with a deadly weapon, firearm, machine gun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of PC 245; assault with a deadly weapon against a public transit employee, custodial officer, or school employee, in violation of PC 245.2, PC 245.3, or PC 245.5;discharge of a firearm at an inhabited dwelling, vehicle, or aircraft, in violation of PC 246; commission of rape or penetration by a foreign object in concert with another person, in violation of PC 264.1; continuous sexual abuse of a child, in violation of PC 288.5; shooting from a vehicle, in violation of PC 12034 (c) or (d); intimidation of victims or witnesses, in violation of PC 136.1; terrorist threats, in violation PC 422; any violation of PC 12022.53. The definition of “violent” felonies contained in PC 667.5(c) was expanded to include arson in violation of PC 451(b); a violation of Section 12308, 12309, or 12310; assault with the intent to commit mayhem, rape, sodomy, or oral copulation, in violation of PC 220; extortion, as defined in PC 518, which would constitute a felony violation of PC 186.22; threats to victims or witnesses, as defined in PC 136.1, which would constitute a felony violation of PC 186.22; any burglary of the first degree, as defined in subdivision PC 460(a), wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary; and any violation of Section 12022.53.
NOTE: “In enacting Section 4 of this initiative, adding subdivision (i) to Section 186.22 of the Penal Code, it is the intent of the people to reaffirm the reasoning contained in footnote 4 of In re Lincoln J.(90) 223 CA3d 322 [272 CR 852] and to disapprove of the reasoning contained in People v. Green (91) 227 CA3d 693 [278 CR 140] (holding that proof that “the person must devote all, or a substantial part of his or her efforts to the criminal street gang” is necessary in order to secure a conviction under subdivision (a) of Section 186.22 of the Penal Code).” (The Gang Violence And Juvenile Crime Prevention Act Proposition 21 (March 7, 2000).) CD-ROM subscribers can access the text of Proposition 21 by searching for “Proposition 21.”
*After the second ¶ of CJ 6.50 (1989 New) add the following to replace the remainder of the CALJIC instruction:
In order to prove this offense, the following elements must be proved:
1. The defendant actively participated in a criminal street gang with knowledge that its members engaged in or have engaged in a pattern of criminal gang activity.
2. The defendant, with knowledge of the gang’s unlawful purpose and with the specific intent to do so, aided and abetted felonious criminal conduct by [a] member[s] of that gang.
The following elements must be proved to establish the existence of a “criminal street gang”:
1. The existence of an on-going organization, association, or group of 3 or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the following criminal acts: __________ [insert appropriate acts from PC 186.22(e)].
2. The above on-going organization, association, or group has a common name or common identifying sign or symbol.
The following elements are required to prove a “pattern of criminal gang activity:
1. The members of a criminal street gang organization individually or collectively committed, attempted to commit, or solicited two or more of the following offenses: __________ [list appropriate offenses from PC 186.22(e)].
2. At least one of the above offenses occurred after September 23, 1988.
3. The last of the above offenses occurred within 3 years after a prior offense.
4. The offenses were committed on separate occasions or by 2 or more persons.
In order to prove the above offenses it is not necessary to establish a conviction but, in the absence of a conviction, the elements of the offenses, as they are given to you in these instructions, must be established by proof beyond a reasonable doubt.
You may not consider the fact that an arrest was made as evidence that the person arrested committed the offense.
Points and Authorities
By breaking out and enumerating the elements of “criminal street gang” and “pattern of criminal behavior” FORECITE’S proposed instruction provides a clearer, more organized presentation of this complex offense than does CJ 6.50.
The elements necessary to establish a “criminal street gang” and a “pattern of criminal gang activity” include proof that at least 2 of the specified offenses in PC 186.22(e) were committed. While it is not necessary to establish conviction for those offenses, the prosecution must prove them beyond a reasonable doubt as with any other element of a criminal offense. (See In re Leland D. (90) 223 CA3d 251, 258-59 [272 CR 709].) An arrest is insufficient to meet this burden as it is in any other case. (Ibid; see also In re Lincoln J. (90) 223 CA3d 322, 327-31 [272 CR 852]; In re Nathaniel C. (91) 228 CA3d 990, 1000-04 [279 CR 236] [hearsay incompetent to establish specific criminal activity].)
The requisite two or more offenses need not be different offenses; each predicate offense need not be committed by two or more persons, and the statute applies to intra-gang crimes. (In re Leland D. (90) 223 CA3d 251 [272 CR 709].)
People v. Gamez (91) 235 CA3d 957, 977-78 [286 CR 894], explicitly holds that the other offenses (the “predicate crimes”) must themselves be “gang related.” “To allow otherwise would be to punish defendant for the unrelated actions of people with whom he associated.” (Emphasis in original) The cases do not articulate a test for measuring whether predicate crimes were “gang related.” Though the term “purposeful gang activity” appears in In re Lincoln J. (90) 223 CA3d 322, 330 [272 CR 852], a later decision, In re Nathaniel C. (91) 228 CA3d 990, 1004 [279 CR 236], declared that this language was not intended to establish a prerequisite. According to Nathaniel C., intra-gang violence also qualifies. The more recent opinion in Gamez simply states that the predicate crimes must be “gang related,” but does not elaborate on the meaning of that requirement.
People v. Gardeley (96) 14 C4th 605 [59 CR2d 356] disapproved People v. Gamez (91) 235 CA3d 957, 977-78 [286 CR 894] and held that the crimes that make up the pattern of criminal street gang activity per PC 186.22(e) do not have to be “gang-related.” However, because the charged offense does have to be gang-related, that offense must be proven to be gang-related even if it is used as one of the “two or more” offenses necessary to show a pattern of criminal gang activity per PC 186.22(e).) (Gardeley, 14 C4th at 625 fn 12.)
In the absence of any more clear guidance from the courts, the proposed instruction above assumes that the “gang related” test for the predicate offenses parallels the gang requirement for the current offense underlying the enhancement. Hence, the predicate offenses, like the currently charged one, must have been committed by gang members for the benefit of, at the direction of, or in association with the criminal street gang. (This formulation is not inconsistent with Nathaniel C., since intra-gang violence is “in association with” the gang and thus comes within the instruction.)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
NOTES
Definition of Felonious Conduct. The January 1992 pocket part revision of CJ 6.50 included the aiding and abetting element required by People v. Green (91) 227 CA3d 692, 703-04 [278 CR 140], which FORECITE highlighted in its March 1991 updates.
The Green court also concluded that the term “felonious criminal conduct” as used in PC 186.22 “covers only conduct which is clearly felonious, i.e., conduct which amounts to the commission of an offense punishable by imprisonment in state prison.” (Green at 704.) Therefore, the jury should be instructed to make such a finding.
Definition of “Separate Occasion.” The term “separate occasion” is not defined in PC 186.22(e). In In re Jose T. (91) 230 CA3d 1455, 1462-63 [282 CR 75], the court suggested two analyses for determining the definition of “separate occasion.” First, the court suggested that by analogy to PC 654 a separate occasion occurs when the defendant entertains multiple criminal objectives which are independent of and not merely incidental to each other. Second, by analogy to PC 667.6(d) the court suggested that a separate occasion occurs when the defendant has had a reasonable opportunity to reflect upon his actions between the alleged offenses. While the Jose T. court was analyzing the question as a matter of substantial evidence, its reliance upon the legal construction of PC 654 and PC 667.6(d) suggests that the term has a special legal meaning upon which the jury should be instructed. (See People v. Pitmon (85) 170 CA3d 38, 52 [216 CR 221].)
Moreover, because the Jose T. court did not express a preference for either of the two definitions it suggested, counsel should feel free to argue for the most advantageous instruction (or a combination of the two) depending on the circumstances.
[See FORECITE F 17.24.2a re: gang enhancement instruction per PC 186.22(b).]
Murder Not Foreseeable Consequence Of Gang Activity. In People v. Godinez (92) 2 CA4th 492, 502-03, fn 6 [3 CR2d 325], the court rejected the prosecution’s argument that homicide is, as a matter of law, a foreseeable consequence of a gang attack.
Briefing Available: [See Brief Bank # B-654 and ask for Article Bank # A-53 for briefing and an article from the CCAP Newsletter (May 1995) by Brad Bristow discussing various issues relating to gang charges.]
See Article Bank # A-82 for an article, “Understanding ‘Gang’ Offenses” by Cessie Alfonso.
The California District Attorney’s Association has posted its “Proposition Implementation Guidelines” for Proposition 21 on its website (http://www.cdaa.org/proposition.aspx).
F 6.50b
Criminal Street Gangs: Definition Of “Actively Participated”
ALERT: See FORECITE F 6.50a.
*Add to CJ 6.50:
To actively participate in a criminal street gang, a person must have a relationship with the gang which is more than nominal, passive, inactive or purely technical.
Points and Authorities
Drawing upon the instruction given by the trial court in Scales v. U.S. (61) 367 US 203, 233 [6 LEd2d 782; 81 SCt 1469], the court in (People v. Green (91) 227 CA3d 692 [278 CR2d 140] concluded that in order to actively participate in a criminal street gang, a defendant’s relationship must be “… (1) more than nominal, passive, inactive or purely technical, and (2) the person must devote all, or a substantial part of his time and efforts to the criminal street gang.” (227 CA3d at 700.) However, People v. Castenada (2000) 23 C4th 743 [97 CR2d 906, 909-13] held that Green‘s second element is not required. Hence, it need only be shown that the participation was more than nominal or passive.
(See FORECITE F 6.50f.)
NOTE: Duty To Instruct. Both Green and Castenada conclude that active participation is a term of common usage the jury would understand without specific definition. Under this view, definition would not be required sua sponte. If a request for definition is refused the matter may be addressed in argument. (See FORECITE F 1.00n.)
NOTE: Applicability To Gang Enhancement. The requirement of “active” participation for the substantive gang charge per PC 186.22(a) is not applicable to the gang enhancement per PC 186.22(b). (In re Ramon T. (97) 57 CA4th 201 [66 CR2d 816].) [See FORECITE F 6.50 n17 as to the requirement that the active participation be “current.”]
[An unpublished opinion (People v. Marroquin DEPUBLISHED (97) 52 CA4th 1038 [62 CR2d 361] reprinted pending review at 56 CA4th 1, 14) discussing this issue is available to FORECITE subscribers. Ask for Opinion Bank # O-228.]
See Article Bank # A-82 for the article, “Understanding ‘Gang’ Offenses” by Cessie Alfonso.
F 6.50c
“Primary Activity” Of Gang: Must Be Proven Beyond A Reasonable Doubt
(PC 186.22)
*Modify CJ 6.50 as follows:
In deciding whether an alleged criminal street gang had, as its primary activity, the commission of certain crimes, consider any evidence of alleged past and/or current crimes. However, unless [all jurors] [you all] agree that the prosecution has proven the required primary activity, as well as all the other required elements, beyond a reasonable doubt, you may not find the gang enhancement allegation to be true.
Points and Authorities
People v. Sengpadychith (2001) 26 C4th 316, 325 [109 CR2d 851] applied Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348] to conclude that, for felonies not punishable by an indeterminate term of imprisonment for life, the gang statute’s requirement of a finding by the trier of fact on the group’s primary activities is a “fact that increases the penalty” for the charged crime. Because such a finding is necessary to prove the criminal street gang enhancement, it is an element of the enhancement. Therefore, a trial court’s failure to instruct the jury on the necessity of such a finding is federal constitutional error. Such error must be evaluated under the high court’s test in Chapman v. California (67) 386 US 18, 24 [17 LEd2d 705; 87 SCt 824], which asks whether the prosecution has “prove[d] beyond a reasonable doubt that the error . . . did not contribute to” the jury’s verdict. (Sengpadychith at 320, 324, 326.)
However, it held that either prior conduct or acts committed at the time of the charged offenses can be used to establish the “primary activities” element of the gang enhancement. (Id. at 322.)
As to the right to a pinpoint instruction on defense theories, see generally FORECITE PG III(D) and PG III(E).
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 6.50d
Prior Statement Of Deceased Declarant In Gang Case
ALERT: Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] may provide a basis for excluding hearsay evidence offered pursuant to EC 1231. (See PG VII(C)(43) [Crawford Update].)
*Supplement CJ 6.50 as follows when appropriate:
Evidence of a prior statement by _______________ (insert name of deceased declarant) has been admitted because [he] [she] is unavailable to testify. You must consider [his] [her] prior statement as if it had been given before you in this trial. This requires you to weigh the credibility of the statement in light of all the circumstances, [including the fact that _________________ was never cross-examined regarding this statement]. You should not speculate as to the reasons for the witness’ unavailability and you must not draw any inference regarding the unavailability of the witness.
Points and Authorities
EC 1231 permits a prior statement of a deceased declarant to be admitted in a gang case (PC 186.20 et seq.; but see Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] [testimonial hearsay inadmissible where declarant is unavailable and never confronted by defendant]), provided that a number of prerequisites are first met. If such evidence is introduced under EC 1231-EC 1231.4 the jury may not be told that the declarant died from anything other than natural causes, but must merely be told that the declarant is unavailable. (EC 1231.4; California Mandatory Criminal Jury Instruction Handbook (CJER) (2013) § 2.161(l).)
The above instruction is based on CJ 2.12 which informs the jury that it must consider the testimony of an unavailable witness as if it had been given in the trial. However, in circumstances where the prior statement has not been subject to cross-examination, the jury should be informed that it may consider such lack of cross-examination in determining the credibility of the witness. (See FORECITE F 2.20b.) The above instruction specifically refers to this factor; however, alternatively, it could be added to the list of factors in CJ 2.20.
Additional Issues: Al Menaster of the Los Angeles County Public Defenders Office prepared a discussion of EC 1231 which appears in the Appellate Practice Seminar Syllabus (10/17/98) produced by and available from CACJ (323) 933-9414. Among the issues raised in that article are the following:
1. EC 1231 applies only in gang cases. What if the defendant is charged with a gang count and a non-gang count? Does the statement come in only on the gang count, but not the non-gang count? Also, what instructions, if any, would have to be given in such a circumstance?
2. The statement should be carefully examined to determine whether it contains information from which it can be concluded that the maker of the statement actually had personal knowledge of the event described.
3. The defendant must have died from other than natural causes. (EC 1231(e).) Accordingly, the cause of death may well be at issue in these cases. Moreover, where there is a factual issue as to the cause of death, the question may have to be presented to the jury with appropriate instructions for purposes of making the necessary preliminary factual determination necessary for consideration of the evidence. (See generally FORECITE F 2.001a; EC 403 [proponent of evidence must establish sufficient foundation for admissibility; jury must determine preliminary fact; defendant entitled to an instruction regarding the preliminary fact].)
4. The statement must be reliable. (See EC 1231(f)(2) and (f)(3).)
5. Notice must be provided or otherwise the sanction is exclusion. (EC 1231.1.)
6. Propriety of peace officers administering oaths. On its face, EC 1231(d) does not provide for admission of a verbal interview by a police officer administering an oath, where the interview is not reduced to an affidavit, and is not under oath in a legal proceeding such as a deposition. Some courts may rule otherwise, but on its face the section does not provide for admission of such a statement.
Practice Tip: Even if specific reference to the lack of cross-examination in the instruction is denied, counsel should be alert to argue this factor as a basis for discrediting the prior hearsay evidence. (See PG VI(C)(10).)
CAVEAT: A request for an instruction on the issue of the declarant‘s unavailability should be evaluated as a matter of trial strategy. There may be a danger that specific reference to the unavailability of the witness may serve only to highlight and further prejudice the defendant by inviting the jury to speculate that the defendant is responsible for the declarant‘s unavailability. On the other hand, the jury may draw this conclusion on its own even if no instruction is given. (See, generally, PG X(E)(19) re: strategic considerations regarding cautionary and limiting instructions.)
F 6.50e
Gangs: Definition Of “Primary Activity”
*Add to the end of the fourth paragraph of CJ 6.50:
In order to prove the primary activities element of the offense, the prosecution must present evidence establishing that the gang consistently and repeatedly committed the crimes specified above.
Points and Authorities
In People v. Sengpadychith (2001) 26 C4th 316 [109 CR2d 851], the Supreme Court indicated that “[s]ufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute.” (Sengpadychith, 26 C4th at 324.)
F 6.50f
Criminal History And Gang Affiliations Not
Alone Sufficient To Prove That Charged Crime
Is “Gang Related”
*Add to CJ 6.50:
As stated above, the prosecution must prove beyond a reasonable doubt that the alleged crime in Count _____ was committed for the benefit of, at the direction of, or in association with a criminal street gang. The defendant’s alleged prior record alone cannot meet this burden. The prosecution is obligated to present evidence apart from the defendant’s alleged record of prior offenses which proves beyond a reasonable doubt that the defendant committed the alleged crime in Count _____ for the benefit of, at the direction of, or in association with a criminal street gang.
If you have a reasonable doubt whether the prosecution has met this burden you must vote to acquit.
Points and Authorities
PC 186.22(b) requires that the felony be committed, 1) for the benefit of, at the direction of or in association with any street gang and, 2) with the specific intent to promote, further or assist in any criminal conduct by gang members. (See In re Nathaniel C. (91) 228 CA3d 990, 1000-04; People v. Gamez (91) 235 CA3d 957, 976-78; see also People v. Gardeley (96) 14 C4th 605, 624 fn 10 [criminal street gang act applies to defendant who “committed a felony to aid and abet criminal conduct of a group…].)
A crime may not be found to be gang related within the meaning of PC 186.22 and PC 186.30 based solely upon the defendant’s criminal history and gang affiliations. The crime itself must have some connection with the activities of a gang, which means a “criminal street gang” as defined in Proposition 21, PC 186.22(e) and (f). A crime is “gang related” in this context when it was committed, in the words of § 186.22(b)(1), for the benefit of, at the direction of, or in association with a street gang. (See People v. Martinez (2004) 116 CA4th 753, 761.)
“A defendant’s history of participation in gang activities or criminal offenses may prove that a crime not otherwise or intrinsically gang related nevertheless falls within the meaning of Cal. Penal Code § 186.30. Thus, a crime committed by a defendant in association with other gang members or demonstrated to promote gang objectives may be gang related. However, the record must provide some evidentiary support, other than merely the defendant’s record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang.” (Martinez, 116 CA4th at 762.)
(See FORECITE 6.50b.)
F 6.50g Limiting Instruction When Expert Relies On Hearsay.
