SERIES 1400 CRIMINAL STREET GANGS
F 1402 Gang-Related Firearm Enhancement (PC 12022.53(e))
TABLE OF CONTENTS
F 1402.1 Titles And Identification Of Parties
F 1402.1 Inst 1 Gang-Related Firearm Enhancement—Title
F 1402.1 Inst 2 Identification Of Prosecution And Defendant
F 1402.2 Gang-Related Firearm Enhancement—Tailoring To Facts: Persons, Places, Things And Theories
F 1402.2 Inst 1 Pattern Of Criminal Gang Activity: Tailor To Facts
F 1402.3 Gang-Related Firearm Enhancement—Language That Is Argumentative, Confusing, Etc.
F 1402.3 Inst 1 Jurors Not Required To Decide
F 1402.3 Inst 2 Deletion Of Argumentative Language
F 1402.4 Gang-Related Firearm Enhancement—Burden Of Proof Issues
F 1402.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1402.5 Gang-Related Firearm Enhancement—Elements And Definitions
F 1402.5 Inst 1 Offense Must Occur During Hours School Is Open
F 1402.5 Inst 2 Incorporate Definition In Elements And Tailor: Personally Uses
F 1402.5 Inst 3 Incorporate Definitional Elements Of Causation In Enumerated Elements
F 1402.6 Gang-Related Firearm Enhancement—Defense Theories [Reserved]
F 1402.7 Gang-Related Firearm Enhancement—Preliminary Fact Issues [Reserved]
F 1402.8 Gang-Related Firearm Enhancement—Unanimity/Duplicity/Multiplicity [Reserved]
F 1402.9 Gang-Related Firearm Enhancement—Lesser Offense Issues [Reserved]
F 1402 Notes
F 1402 Note 1 Gang-Related Firearm Enhancement—CALCRIM Cross-References And Research Notes
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1402.1 Titles And Identification Of Parties
F 1402.1 Inst 1 Gang-Related Firearm Enhancement—Title
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 1402.1 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 1402.2Gang-Related Firearm Enhancement—Tailoring To Facts: Persons, Places, Things And Theories
F 1402.2 Inst 1 Pattern Of Criminal Gang Activity: Tailor To Facts
See FORECITE F 1401.2 Inst 1.
F 1402.3 Gang-Related Firearm Enhancement—Language That Is Argumentative, Confusing, Etc.
F 1402.3 Inst 1 Jurors Not Required To Decide
See FORECITE F 1401.3 Inst 1.
F 1402.3 Inst 2 Deletion Of Argumentative Language
*Modify CC 1402, paragraph 6, as follows [deleted language is stricken]:
[A firearm does not need to be in working order if it was designed to shoot and appears capable of shooting.] [A firearm does not need to be loaded.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 1402.4 Gang-Related Firearm Enhancement—Burden Of Proof Issues
F 1402.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 1402.5 Gang-Related Firearm Enhancement—Elements And Definitions
F 1402.5 Inst 1 Offense Must Occur During Hours School Is Open
See FORECITE F 1401.5 Inst 1.
F 1402.5 Inst 2 Incorporate Definition In Elements And Tailor: Personally Uses
*Replace CC 1402, Element 1, with the following:
1. _______________ <name of alleged principal> was a principal in the crime. To prove this the prosecution must prove beyond a reasonable doubt either that:
A. _______________ <name of alleged principal> [directly committed] [or] [attempted to commit] the crime;
OR
B. _______________ <name of alleged principal> aided and abetted [someone else] [_______________ <name of perpetrator>] who committed the crime;
AND
2. _______________ <name of alleged principal> personally [displayed a firearm in a menacing manner/[or] hit _______________ <name of person hit> with a firearm/[or] fired a firearm];
Points and Authorities
Incorporation Of Definition—See FORECITE F 417.5 Inst 2.
Tailor To Facts: Persons—See FORECITE F 400.2 Inst 1.
Tailor To Facts: Prosecution Theories—See FORECITE F 400.2 Inst 1.
F 1402.5 Inst 3 Incorporate Definitional Elements Of Causation In Enumerated Elements
See FORECITE F 1551.5 Inst 7.
F 1402.6 Gang-Related Firearm Enhancement—Defense Theories [Reserved]
F 1402.7 Gang-Related Firearm Enhancement—Preliminary Fact Issues [Reserved]
F 1402.8 Gang-Related Firearm Enhancement—Unanimity/Duplicity/Multiplicity[Reserved]
F 1402.9 Gang-Related Firearm Enhancement—Lesser Offense Issues [Reserved]
F 1402 NOTES
F 1402 Note 1 Gang-Related Firearm Enhancement—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
See FORECITE F 1400 Note 1.
Research Notes:
See CLARAWEB Forum, Criminal Street Gangs—Series 1400.
F 1402 Note 2 PC 12022.53(e): 10-20-Life For Unarmed Aider And Abettor With Gang Allegation Is Constitutional
See (People v. Gonzales (2001) 87 CA4th 1, 17.
CALJIC NOTE: See FORECITE F 17.15 n10.
F 1402 Note 3 Improper To Instruct On Gang Firearm Enhancement When Gun Was Fired By An Unknown Person
People v. Camino (2010) 188 CA4th 1359, 1381:
“As there exists no shooter in defendant’s group who is (or was) a principal in the offense charged in Count 1, the jury’s finding that defendant vicariously shot a gun during the commission of Palacios’s murder is unsupported by substantial evidence. Defendant asserts instructional error. It is clear the jury was mislead by CALCRIM No. 1402, given the lack of evidentiary support for the enhancement. Possibly the jury was confused by the instruction’s simultaneous coverage of the gun enhancements for both Counts 1 and 2, and by the prosecutor’s statement in his closing argument that Palacios was “one of the principals in the crime….” The error was prejudicial as it is reasonably probable the jury would have reached a result more favorable to defendant absent the misleading instruction. (People v. Sengpadychith (2001) 26 Cal.4th 316, 320–321 [109 Cal.Rptr.2d 851, 27 P.3d 739] [failure to instruct on element of enhancement is subject to People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243], harmless error standard, if associated crime is punishable by indeterminate term of life imprisonment].)
F 1402 Note 4 Instructions Should Assure That Jurors Understand Which Counts Require Defendant To Personally Use A Firearm
CC 1402 applies to a firearm use under PC 12022.53(a) which only requires that “a principal” use a firearm. In cases where there are also counts in which it is alleged that the defendant personally used a firearm per PC 12022.53(b) the instructions should assure the jurors understand that they must find personal use as required by CC 3146. (See People v. Mendez (2010) 188 CA4th 47, 59-60.
F 1402 Note 5 Restrictions On Gang Expert Testimony
– In re Frank S. (2006) 141 CA4th 1192, 1199 [testimony that weapon was possessed to benefit a gang improperly comments on an ultimate
issue].
– People v. Ramon (2009) 175 CA4th 843, 853 [improper to testify that crimes were for benefit of the gang based solely on fact that
defendants were gang members who were in their own gang territory].
– In re Alexander (2007) 149 CA4th 605, 611-12 [expert testimony that the gang committed certain unspecified crimes was insufficient to
prove that vandalism was done to benefit the gang].