Return to CALJIC Part 14-17 – Contents
F 17.24.2 n1 Pattern Of Criminal Gang Activity May Be Proved By Relying Exclusively On Currently-Charged Offenses.
[See FORECITE F 6.50 n15.]
F 17.24.2 n2 Criminal Street Gangs: Sua Sponte Duty To Define “Actively Participated.”
NOTE: The requirement of “active” participation for the substantive gang charge per PC 186.22(a) (see FORECITE F 6.50b) is not applicable to the gang enhancement per PC 186.22(b). (In re Ramon T. (97) 57 CA4th 201 [66 CR2d 816].)
F 17.24.2 n3 “Primary Activity” Of Gang: Current Offenses Are Insufficient (PC 186.22).
(See FORECITE F 6.50c.)
F 17.24.2 n4 Gangs: Whether Proposition 21 Violates Separation Of Powers.
(See FORECITE F 6.50 n22.)
F 17.24.2 n5 Bifurcation Of Gang Enhancement: Severance Analysis.
(See People v. Hernandez (2004) 33 C4th 1040.)
F 17.24.2 n6 Multiple Crimes From A Single Occasion: Predicate Crimes For Gang Enhancement (PC 186.22(b)).
(See FORECITE F 17.02 n26.)
F 17.24.2 n7 Gang Enhancement Converts Offense to Serious Felony.
See People v. Briceno (2004) 34 C4th 451, 460 [“viewing Proposition 21 as a whole, we conclude that the term `violation’ in [PC] 1192.7(c)(28) includes sentence enhancements”].
F 17.24.2a
Criminal Street Gang Enhancement
(PC 186.22(b))
ALERT: See FORECITE F 6.50a.
*Add after general description of enhancement in CJ 17.24.2:
In order to prove this allegation, the prosecution must prove beyond a reasonable doubt that the defendant committed the offense charged in Count _____.
1. For the benefit of, at the direction of, or in association with a criminal street gang, and
2. With the specific intent to promote, further, or assist in any criminal conduct by gang members.
A “criminal street gang” is defined as an on-going organization, association, or group of 3 or more persons, whether formal or informal:
a. which has 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)];
b. which has a common name or common identifying sign or symbol; and
c. whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.
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.
5. The offenses occurred prior to the date of the alleged offense charged in Count _____.
In order to prove the two or more required 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
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 [279 CR 236]; People v. Gamez (91) 235 CA3d 957, 976-78 [286 CR 894]; see also People v. Gardeley (96) 14 C4th 605, 624 fn 10 [59 CR2d 356] [criminal street gang act applies to defendant who “committed a felony to aid and abet criminal conduct of a group…].)
“Criminal street gang” is defined in PC 186.22(f). The requirements of PC 186.22(f) and PC 186.22(e) — which defines “pattern of criminal gang activity” — must be satisfied to establish that the predicate offense is “gang related.” (Nathaniel C. at 1000; Gamez at 977.)
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 [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, 330 [272 CR 852]; In re Nathaniel C. (91) 228 CA3d 990, 1000-04 [279 CR 236] [hearsay incompetent to establish specific criminal activity].)
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 People v. Godinez (93) 17 CA4th 1363, 1368-69 [22 CR2d 164], the court considered whether the gang related enhancement (PC 186.22(b)(2)) may be predicated upon gang related offenses which occurred after the charged offense. PC 186.22(e) defines “pattern of criminal gang activity” as “the commission, attempted commission or solicitation of two or more of the following offenses ….”
After discussing two cases which assumed that the predicate crimes for the enhancement must precede the charged offense (People v. Gamez (91) 235 CA3d 957, 965 [286 CR2d 894] and In re Lincoln J. (90) 223 CA3d 322, 328 [272 CR 852]), Godinez held that it would violate due process notice principles to allow the use of predicate offenses which occurred after the charged offense. Hence, the court construed the statute to exclude offenses occurring after the charged offenses for which the defendant is on trial. (17 CA4th at 1368-69.)
A sentencing enhancement which increases the range of punishment to which the defendant is exposed is subject to the due process (5th and 14th Amendments) and fair trial by jury (6th and 14th Amendments) provisions of the federal constitution. (See Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; Jones v. U.S. (99) 526 US 227 [143 LEd2d 311; 119 SCt 1215]; see also Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531]; see also FORECITE PG VII(C)(32).)
NOTES
By breaking out and enumerating the elements of “criminal street gang” and “pattern of criminal behavior” this proposed instruction is intended to provide a clear, organized presentation of this complex offense. (Compare CJ 6.50.)
The two or more predicate offenses need not be different offenses; each predicate offense need not be committed by two or more persons; the statute applies to intra-gang crimes. (Nathaniel C. at 1001-03.)
“Wilfully promotes further or assists” is the equivalent of aiding and abetting. (People v. Green (91) 227 CA3d 692, 703-04 [278 CR 140].) Hence, the jury should also be fully instructed on the principles of aiding and abetting.
While no court has yet to hold that a gang enhancement is analogous to a prior felony conviction, at the very least the trial court should consider bifurcation upon request of the defendant and should be guided by the same principles employed under EC 352. (See People v. Calderon (94) 9 C4th 69, 78 [36 CR2d 333] [bifurcation is a matter of discretion rather than an absolute right].)
Contrary to the substantive gang offense (PC 186.22(a)) the gang enhancement (PC 186.22(b)) can be applied to accessories. (People v. Rocha DEPUBLISHED (92) 6 CA4th 1533, 1541-43 [8 CR2d 504]; see also People v. Augborne (2002) 104 CA4th 362 [128 CR 2d 258] [prosecution has no duty to prove that the two or more persons perpetrating the predicate offenses were gang members when the enumerated crimes were committed]; People v. Gardeley (96) 14 C4th 605, 620‑621 [59 CR2d 356].) [The Rocha opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-114.]
See Article Bank # A-82. for the article, “Understanding ‘Gang’ Offenses” by Cessie Alfonso.
[See FORECITE F 6.50 for additional gang issues.]
F 17.24.2b
THIS ENTRY HAS BEEN MOVED TO FORECITE F 17.25f.
F 17.24.2c
THIS ENTRY HAS BEEN MOVED TO FORECITE F 17.25g.
F 17.24.2d
THIS ENTRY HAS BEEN MOVED TO FORECITE F 17.25h.
F 17.24.2e
THIS ENTRY HAS BEEN MOVED TO FORECITE F 17.25i.
