SERIES 1400 CRIMINAL STREET GANGS
F 1401 Felony Committed For Benefit Of Criminal Street Gang (PC 186.22(b)(1))
TABLE OF CONTENTS
F 1401.1 Titles And Identification Of Parties
F 1401.1 Inst 1 Felony Committed For Benefit Of Criminal Street Gang—Title
F 1401.1 Inst 2 Identification Of Prosecution And Defendant
F 1401.2 Felony Committed For Benefit Of Criminal Street Gang—Tailoring To Facts: Persons, Places, Things And Theories
F 1401.2 Inst 1 Pattern Of Criminal Gang Activity: Tailor To Facts
F 1401.3 Felony Committed For Benefit Of Criminal Street Gang—Language That Is Argumentative, Confusing, Etc.
F 1401.3 Inst 1 Jurors Not Required To Decide
F 1401.4 Felony Committed For Benefit Of Criminal Street Gang—Burden Of Proof Issues
F 1401.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1401.5 Felony Committed For Benefit Of Criminal Street Gang—Elements And Definitions
F 1401.5 Inst 1 Offense Must Occur During Hours School Is Open
F 1401.6 Felony Committed For Benefit Of Criminal Street Gang—Defense Theories [Reserved]
F 1401.7 Felony Committed For Benefit Of Criminal Street Gang—Preliminary Fact Issues [Reserved]
F 1401.8 Felony Committed For Benefit Of Criminal Street Gang—Unanimity / Duplicity / Multiplicity [Reserved]
F 1401.9 Felony Committed For Benefit Of Criminal Street Gang—Lesser Offense Issues [Reserved]
Return to Series 1400 Table of Contents.
F 1401.1 Titles And Identification Of Parties
F 1401.1 Inst 1 Felony Committed For Benefit Of Criminal Street Gang—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1401.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 1401.2Felony Committed For Benefit Of Criminal Street Gang—Tailoring To Facts: Persons, Places, Things And Theories
F 1401.2 Inst 1 Pattern Of Criminal Gang Activity: Tailor To Facts
*Modify CC 1401, Element 4 [Specific Theory] as follows [added language is underlined; deleted language is stricken]:
4. The crimes were:
A. Committed on separate occasions _______________ <date> and _______________ <date>;
OR
B. Were personally committed by two or more persons _______________ <names of persons committing crimes>.
Points and Authorities
See FORECITE F 400.2 Inst 1.
F 1401.3 Felony Committed For Benefit Of Criminal Street Gang—Language That Is Argumentative, Confusing, Etc.
F 1401.3 Inst 1 Jurors Not Required To Decide
*Modify CC 1401, paragraph 1 & 2, as follows [added language is underlined]:
If you find the defendant guilty of the crime[s] charged in Count[s] ____ [,] [or of attempting to commit (that/those crime[s])][,][or the lesser offense[s] of __________<insert lesser offense[s]>], you must then decide, if you can, whether[, for each crime,] the People have proved the additional allegation that the defendant committed that crime (for the benefit of[,]/ at the direction of[,]/[or] in association with) a criminal street gang. [You must decide, if you can, whether the People have proved this allegation for each crime and return a separate finding for each crime.]
[You must also decide, if you can, whether the crime[s] charged in Count[s] _____ (was/were) committed on the grounds of, or within 1,000 feet of a public or private (elementary/ [or] vocational/ [or] junior high/ [or] middle school/ [or] high) school open to or being used by minors for classes or school-related programs at the time.]
Points and Authorities
See FORECITE F 100.7 Inst 1.
F 1401.4 Felony Committed For Benefit Of Criminal Street Gang—Burden Of Proof Issues
F 1401.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 1401.5 Felony Committed For Benefit Of Criminal Street Gang—Elements And Definitions
F 1401.5 Inst 1 Offense Must Occur During Hours School Is Open
*Modify CC 1401, paragraph 2, as follows
[You must also decide whether the crime[s] charged in Count[s] _____ (was/were) committed on the grounds of, or within 1,000 feet of a public or private (elementary/ [or] vocational/ [or] junior high/ [or] middle school/ [or] high) school during hours in which the facility is open to or being used by minors for classes or school-related programs at the time.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—The CALCRIM language does not clearly state the “during school hours” requirement. (See PC 186.22(b)(2).)
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1401.6 Felony Committed For Benefit Of Criminal Street Gang—Defense Theories[Reserved]
F 1401.7 Felony Committed For Benefit Of Criminal Street Gang—Preliminary Fact Issues[Reserved]
F 1401.8 Felony Committed For Benefit Of Criminal Street Gang—Unanimity / Duplicity / Multiplicity[Reserved]
F 1401.9 Felony Committed For Benefit Of Criminal Street Gang—Lesser Offense Issues[Reserved]
