SERIES 1400 CRIMINAL STREET GANGS
F 1400 Active Participation In Criminal Street Gang (PC 186.22(a))
TABLE OF CONTENTS
F 1400.1 Titles And Identification Of Parties
F 1400.1 Inst 1 Active Participation In Criminal Street Gang—Title
F 1400.1 Inst 2 Identification Of Prosecution And Defendant
F 1400.2 Active Participation In Criminal Street Gang—Tailoring To Facts: Persons, Places, Things And Theories
F 1400.2 Inst 1 Tailoring To Facts; Specify Predicate Crime; Include Definition In Elements
F 1400.2 Inst 2 Pattern Of Criminal Gang Activity: Tailor To Facts; Separate Enumeration Of Elements
F 1400.3 Active Participation In Criminal Street Gang—Language That Is Argumentative, Confusing, Etc.
F 1400.3 Inst 1 Deletion Of Argumentative Language
F 1400.3 Inst 2 Willfully: Argumentative
F 1400.4 Active Participation In Criminal Street Gang—Burden Of Proof Issues
F 1400.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1400.4 Inst 2 “Primary Activity” Of Gang: Must Be Proven Beyond A Reasonable Doubt (PC 186.22)
F 1400.5 Active Participation In Criminal Street Gang—Elements And Definitions
F 1400.5 Inst 1 Gangs: Definition Of “Primary Activity”—Crimes Must Be “Consistently And Repeatedly” Committed
F 1400.5 Inst 2 (a-d) Criminal History And Gang Affiliations Not Alone Or By Itself Sufficient To Prove That Charged Crime Is “Gang Related”
F 1400.5 Inst 3 Willfully: Separate Enumeration Of Elements
F 1400.5 Inst 4 Willfully: Knowledge
F 1400.5 Inst 5 Aiding And Abetting: Issues And Instructions
F 1400.6 Active Participation In Criminal Street Gang—Defense Theories
F 1400.6 Inst 1 Active Participation; Part Or In Name Only
F 1400.7 Active Participation In Criminal Street Gang—Preliminary Fact Issues
F 1400.7 Inst 1 Prior Statement Of Deceased Declarant In Gang Case
F 1400.8 Active Participation In Criminal Street Gang—Unanimity/Duplicity/Multiplicity [Reserved]
F 1400.9 Active Participation In Criminal Street Gang—Lesser Offense Issues [Reserved]
Return to Series 1400 Table of Contents.
F 1400.1 Titles And Identification Of Parties
F 1400.1 Inst 1 Active Participation In Criminal Street Gang—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1400.1 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 1400.2Active Participation In Criminal Street Gang—Tailoring To Facts: Persons, Places, Things And Theories
F 1400.2 Inst 1 Tailoring To Facts; Specify Predicate Crime; Include Definition In Elements
*Modify CC 1400, Elements, as follows [added language is underlined; deleted language is stricken]:
1. The defendant actively participated in _______________ <name of gang> a criminal street gang that was an ongoing organization, association, or group of three or more persons, whether formal or informal:
A. That has a common name or common identifying sign or
symbol;
B. That has, as one or more of its primary activities, the
commission of <insert one or more crimes listed
in Pen. Code, § 186.22(e)(1)–(25)>;
AND
3. Whose members, whether acting alone or together, engage in or have engaged in a pattern of criminal gang activity.
2. The defendant’s involvement in the gang was active in a way that is more than passive or in name only.
2 3. When the defendant participated in the gang, (he/she) knew that members of the gang engage in or have engaged in a pattern of criminal gang activity;
AND
3 4. The defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang.
Points and Authorities
Tailoring—See FORECITE F 400.2 Inst 1.
Separate Enumeration—See FORECITE F 3500.2 Inst 1.
Argumentative Language—See FORECITE F 416.3 Inst 4.
F 1400.2 Inst 2 Pattern Of Criminal Gang Activity: Tailor To Facts; Separate Enumeration Of Elements
*Modify CC 1400, 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
Tailor To Facts—See FORECITE F 400.2 Inst 1.
Separate Enumeration—See FORECITE F 3500.2 Inst 1.
F 1400.3 Active Participation In Criminal Street Gang—Language That Is Argumentative, Confusing, Etc.
F 1400.3 Inst 1 Deletion Of Argumentative Language
*Modify CC 1400, paragraphs 4, 7 & 8 as follows [deleted language is stricken]:
[The People do not have to prove that the defendant devoted all or a substantial part of (his/her) time or efforts to the gang, or that (he/she) was an actual member of the gang.]
The People need not prove that every perpetrator involved in the pattern of criminal gang activity, if any, was a member of the alleged criminal street gang at the time when such activity was taking place.
[The crimes, if any, that establish a pattern of criminal gang activity, need not be gang-related.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 1400.3 Inst 2 Willfully: Argumentative
See FORECITE F 820.5 Inst 1.
F 1400.4 Active Participation In Criminal Street Gang—Burden Of Proof Issues
F 1400.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 1400.4 Inst 2 “Primary Activity” Of Gang: Must Be Proven Beyond A Reasonable Doubt (PC 186.22)
*Add to CC 1400 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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Pinpoint Instruction Relating Defense Theory To Burden Of Proof—See FORECITE F 315.1.2 Inst 2.
People v. Sengpadychith (2001) 26 C4th 316, 325 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 (1967) 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.)
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.
CALJIC NOTE: See FORECITE F 6.50c.
F 1400.5 Active Participation In Criminal Street Gang—Elements And Definitions
F 1400.5 Inst 1 Gangs: Definition Of “Primary Activity”—Crimes Must Be “Consistently And Repeatedly” Committed
*Add to CC 1400, paragraph 8:
Further, the gang must commit such crimes consistently and repeatedly.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
“Consistently And Repeatedly”—In People v. Sengpadychith (2001) 26 C4th 316, 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.)
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.
CALJIC NOTE: See FORECITE F 6.50e.
F 1400.5 Inst 2 (a-d) Criminal History And Gang Affiliations Not Alone Or By Itself Sufficient To Prove That Charged Crime Is “Gang Related”
*Add to CC 1400:
Alternative a [CALCRIM 375, 852, 853 Format]:
If you conclude that the defendant has committed prior offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant committed the crime alleged in Count ____ (for the benefit of[,]/at the direction of [,]/[or] in associated with) a criminal street gang.
Alternative b [CALCRIM 362 Format]:
If you conclude that the defendant committed prior offenses, it is up to you to decide its meaning and importance, if any; however, any evidence of alleged prior offenses cannot prove by itself that the defendant committed the crime alleged in Count ____ (for the benefit of[,]/at the direction of [,]/[or] in associated with) a criminal street gang
Alternative c [CC 420 Format]:
[The defendant’s alleged prior record is not sufficient [alone] [by itself] to prove that the defendant committed the crime alleged in Count ____ (for the benefit of[,]/at the direction of [,]/[or] in associated with) a criminal street gang.]
Alternative d:
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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction That Specific Evidence Is Not “Alone” or “By Itself” Sufficient To Convict Or Prove A Fact—See FORECITE F 370 Inst 8.
Prior Record Not Alone Sufficient To Prove Crime Was Committed For Benefit, At Direction Of, Or In Association With A Gang—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. (1991) 228 CA3d 990, 1000-04; People v. Gamez (1991) 235 CA3d 957, 976-78; see also People v. Gardeley (1996) 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.)
Limitation Of Conviction Based On Speculative Inference Alone Required By Federal Constitution—See FORECITE F 370 Inst 8.
“If Any” In Alternative b—”If any” was added to Alternative b. (See FORECITE F 105.1 Inst 6.)
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
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 2.3 [Prosecution’s Burden of Proof: Irrational Permissive Inference]
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.
CALJIC NOTE: See FORECITE F 6.50f.
F 1400.5 Inst 3 Willfully: Separate Enumeration Of Elements
*Modify CC 1400, Element 3, and add Element 4, as follows [added language is underlined; deleted language is stricken]:
3. The defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang.
4. The defendant did so willfully.
Points and Authorities
See FORECITE F 3500.2 Inst 1.
F 1400.5 Inst 4 Willfully: Knowledge
See FORECITE F 820.5 Inst 1.
F 1400.5 Inst 5 Aiding And Abetting: Issues And Instructions
See FORECITE F 400 et seq.
F 1400.6 Active Participation In Criminal Street Gang—Defense Theories
F 1400.6 Inst 1 Active Participation; Part Or In Name Only
*Add to CC 1400 [CC 3400 adaption];
The prosecution must prove that the defendant actively participated in a criminal street gang. The defendant contends (he/she) did not actively participate because (his/her) membership in the gang, if any, was in name only. The prosecution must prove that the defendant’s participation in the gang was active and not merely in name only. The defendant does not need to prove (he/she) participated in name only. If you have a reasonable doubt about whether the prosecution has proved that the defendant actively participated in a criminal street gang, you must find (him/her) not guilty.
Points and Authorities
See FORECITE F 315.1.2 Inst 2.
F 1400.7 Active Participation In Criminal Street Gang—Preliminary Fact Issues
F 1400.7 Inst 1 Prior Statement Of Deceased Declarant In Gang Case
*Supplement CC 1400 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. Consider [his] [her] prior statement as if it had been given before you in this trial and 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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—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 CC 226 and CJ 2.12 which inform 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 105.4 Inst 5.) The above instruction specifically refers to this factor; however, alternatively, it could be added to the list of factors in CC 226.
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 5.1 [Highly Prejudicial Or Inflammatory Evidence]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
FORECITE CG 7.3 [Consideration Of Matters Not Admitted Into Evidence]
FORECITE CG 7.4 [Juror Consideration Of Evidence For An Improper Purpose]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
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.)
CALJIC NOTE: See FORECITE F 6.50d.
F 1400.8 Active Participation In Criminal Street Gang—Unanimity/Duplicity/Multiplicity [Reserved]
F 1400.9 Active Participation In Criminal Street Gang—Lesser Offense Issues [Reserved]
