SERIES 1400 CRIMINAL STREET GANGS
F 1400 NOTES
TABLE OF CONTENTS
F 1400 Note 1 Active Participation In Criminal Street Gang—CALCRIM Cross-References And Research Notes
F 1400 Note 2 Gang Statute Held Constitutional
F 1400 Note 3 Definition of Felonious Conduct
F 1400 Note 4 Definition of “Separate Occasion”
F 1400 Note 5 Gangs: Homicide Not Foreseeable Risk
F 1400 Note 6 Federal Constitution Requires Unanimity As To Predicate Offenses
F 1400 Note 7 Gang Offense: Pattern Of Criminal Activity Must Occur Prior To The Charged Offense
F 1400 Note 8 Gang Offense: No Requirement Of Threat Of Continued Criminal Activity
F 1400 Note 9 Single Incident To Prove “Pattern” Of Gang Activity
F 1400 Note 10 Gang Offense: PC 186.22(c) Convictions Cannot Stand
F 1400 Note 11 Pattern Of Criminal Gang Activity: Propriety Of Relying Exclusively On Currently-Charged Offenses
F 1400 Note 12 Active Gang Participation Must Be Current
F 1400 Note 13 “Engaged In” vs. “Committed”
F 1400 Note 14 Distinction Between Substantive Gang Offense (PC 186.22(a)) And Gang Enhancement (PC 186.22(b))
F 1400 Note 15 Gang Statute Applies To Perpetrator As Well As Aider And Abettor
F 1400 Note 16 Gangs: Whether Proposition 21 Violates Separation Of Powers
F 1400 Note 17 Gangs: PC 186.22(d) Is Not A Separately Chargeable Crime
F 1400 Note 18 Gang Offender Registration (PC 186.30)
F 1400 Note 19 Gang Conviction Based Entirely On Speech And Association With Another Violates The First Amendment
F 1400 Note 20 Criminal Street Gangs: Gang Member Registration Law Unconstitutionally Vague (PC 186.30)
F 1400 Note 21 Gang Enhancement (PC 186.22(d)) Applies To Misdemeanors
F 1400 Note 22 Multiple Crimes From A Single Occasion: Predicate Crimes For Gang Enhancement (PC 186.22(b))
F 1400 Note 23 Gangs: Crime By Aider And Abettor Cannot Be Predicate Offense For “Pattern Of Criminal Gang Activity”
F 1400 Note 24 Gang Enhancement And Use Of Firearm
Return to Series 1400 Table of Contents.
F 1400 Note 1 Active Participation In Criminal Street Gang—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 1401 [Felony Committed for Benefit of Criminal Street Gang]
CALCRIM 1402 [Gang-Related Firearm Enhancement]
CALCRIM 1403 [Limited Purpose of Evidence of Gang Activity]
Research Notes:
See CLARAWEB Forum, Criminal Street Gangs—Series 1400.
Additional Resources:
See Brief Bank # B-654 for briefing 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 1400 Note 2 Gang Statute Held Constitutional
The constitutionality of PC 186.22 and the terms utilized therein has been upheld in People v. Green (1991) 227 CA3d 692, 698-704; In re Alberto R. (1991) 235 CA3d 1309, 1321-24; and People v. Gamez (1991) 235 CA3d 957, 971-78. 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.)
CALJIC NOTE: See FORECITE F 6.50 n1.
F 1400 Note 3 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 (1991) 227 CA3d 692, 703-04, which FORECITE highlighted in its March 1991 updates.
F 1400 Note 4 Definition of “Separate Occasion”
The term “separate occasion” is not defined in PC 186.22(e). In In re Jose T. (1991) 230 CA3d 1455, 1462-63, 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 (1985) 170 CA3d 38, 52.)
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).]
CALJIC NOTE: See FORECITE F 6.50a.
F 1400 Note 5 Gangs: Homicide Not Foreseeable Risk
In People v. Godinez (1992) 2 CA4th 492, 502-503, fn 6, the court rejected the prosecution’s argument that homicide is as a matter of law a foreseeable consequence of a gang attack.
CALJIC NOTE: See FORECITE F 6.50 n2.
F 1400 Note 6Federal Constitution Requires Unanimity As To Predicate Offenses
See FORECITE F 17.01 n15.
CALJIC NOTE: See FORECITE F 6.50 n6.
F 1400 Note 7Gang 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 (1991) 235 CA3d 957, 976; In re Nathaniel C. (1991) 228 CA3d 990, 1002.) [See Brief Bank # B-631 for additional briefing on this issue.]
People v. Muhamed DEPUBLISHED (1996) 41 CA4th 270 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 (1994) 31 CA4th 1355, 1385-86 [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 (1996) 14 C4th 605, 625 fn. 12.
CALJIC NOTE: See FORECITE F 6.50 n8.
F 1400 Note 8Gang Offense: No Requirement Of Threat Of Continued Criminal Activity
People v. Olguin (1994) 31 CA4th 1355, 1385-86 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.
CALJIC NOTE: See FORECITE F 6.50 n9.
F 1400 Note 9Single Incident To Prove “Pattern” Of Gang Activity
(See FORECITE F 540A Note 15.)
CALJIC NOTE: See FORECITE F 6.50 n12.
F 1400 Note 10 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 (1996) 42 CA4th 667 reprinted for tracking pending review at 47 CA4th 63; see also, People v. Rossi (1976) 18 C3d 295, 300.)
CALJIC NOTE: See FORECITE F 6.50 n14.
F 1400 Note 11Pattern Of Criminal Gang Activity: Propriety Of Relying Exclusively On Currently-Charged Offenses
People v. Muhamed DEPUBLISHED (1995) 41 CA4th 270, 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 (1999) 21 C4th 927 [required two offenses for gang enhancement cannot be shown by currently-charged offense involving an accomplice]; People v. Gamez (1991) 235 CA3d 957, 970-72; In re Elodio O. (1997) 56 CA4th 1175, 1180; but see People v. Loeun (1997) 17 C4th 1 [criminal gang activity is proven by offense charged and proof of another offense committed on the same occasion by a fellow gang member].)
CALJIC NOTE: See FORECITE F 6.50 n15.
F 1400 Note 12Active 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
NOTE: See FORECITE F 540b for an instruction defining “actively participates” within the meaning of PC 186.22.
CALJIC NOTE: See FORECITE F 6.50 n17.
F 1400 Note 13“Engaged In” vs. “Committed”
See FORECITE F 1120.5 Inst 1.
F 1400 Note 14Distinction 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 17.24.2a 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-805forthe briefing and opinion in People v. Valencia UNPUBLISHED (F026467).]
(See also FORECITE F 17.24.2 n1 and F 17.24.2 n2.)
CALJIC NOTE: See FORECITE F 6.50 n20.
F 1400 Note 15Gang Statute Applies To Perpetrator As Well As Aider And Abettor
People v. Ngoun (2001) 88 CA4th 432, 436 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 (1991) 227 CA3d 692, 703-04 [defendant must be aider and abettor to be convicted under PC 186.22(a)]; People v Castenada (2000) 23 C4th 743, 749 [“[A] person who violates section 186.22(a) has also aided and abetted a separate felony offense committed by gang members, 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.
CALJIC NOTE: See FORECITE F 6.50 n21.
F 1400 Note 16Gangs: Whether Proposition 21 Violates Separation Of Powers
Manduley v. Superior Court (2002) 27 C4th 537 held that Proposition 21 does not violate the separation of powers clause of the California Constitution. (Article III, § 1.)
CALJIC NOTE: See FORECITE F 6.50 n22.
F 1400 Note 17Gangs: 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].)
CALJIC NOTE: See FORECITE F 6.50 n23.
F 1400 Note 18Gang 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 540 Note 28.)
CALJIC NOTE: See FORECITE F 6.50 n24.
F 1400 Note 19Gang Conviction Based Entirely On Speech And Association With Another Violates The First Amendment
See McCoy v. Stewart (9th Cir. 2002) 282 F3d 626.
CALJIC NOTE: See FORECITE F 6.50 n26.
F 1400 Note 20 Criminal Street Gangs: Gang Member Registration Law Unconstitutionally Vague (PC 186.30)
People v. Sanchez (2003) 105 CA4th 1240 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.
CALJIC NOTE: See FORECITE F 6.50 n28.
F 1400 Note 21Gang Enhancement (PC 186.22(d)) Applies To Misdemeanors
(See In re Robert L. (2003) 30 C4th 894; but see dissenting opinion of Kennard, J.)
CALJIC NOTE: See FORECITE F 6.50 n29.
F 1400 Note 22Multiple Crimes From A Single Occasion: Predicate Crimes For Gang Enhancement (PC 186.22(b))
(See FORECITE F 17.02 n26.)
CALJIC NOTE: See FORECITE F 6.50 n30.
F 1400 Note 23Gangs: 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 (1999) 21 C4th 927, 932.
CALJIC NOTE: See FORECITE F 6.50 n34.
F 1400 Note 24 Gang Enhancement And Use Of Firearm
See FORECITE F 3115 Note 16.
