SERIES 1400 CRIMINAL STREET GANGS
F 1401 NOTES
TABLE OF CONTENTS
F 1401 Note 1 Felony Committed For Benefit Of Criminal Street Gang—CALCRIM Cross-References And Research Notes
F 1401 Note 2 Pattern Of Criminal Gang Activity May Be Proved By Relying Exclusively On Currently-Charged Offenses
F 1401 Note 3 “Primary Activity” Of Gang: Current Offenses Are Insufficient (PC 186.22)
F 1401 Note 4 Gangs: Whether Proposition 21 Violates Separation Of Powers
F 1401 Note 5 Bifurcation Of Gang Enhancement: Severance Analysis
F 1401 Note 6 Multiple Crimes From A Single Occasion: Predicate Crimes For Gang Enhancement (PC 186.22(b))
F 1401 Note 7 Gang Enhancement Converts Offense To Serious Felony
F 1401 Note 8 Distinction Between Substantive Gang Offense (PC 186.22(a)) And Gang Enhancement (PC 186.22(b))
F 1401 Note 9 Intent Need Not Be Labeled “Specific”
F 1401 Note 10 Improper To Instruct On Gang Enhancement When Defendant Was A Sole Perpetrator
Return to Series 1400 Table of Contents.
F 1401 Note 1 Felony Committed For Benefit Of Criminal Street Gang—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 1401 Note 2 Pattern Of Criminal Gang Activity May Be Proved By Relying Exclusively On Currently-Charged Offenses
See FORECITE F 1400 Note 11.
CALJIC NOTE: See FORECITE F 17.24.2 n1.
F 1401 Note 3 “Primary Activity” Of Gang: Current Offenses Are Insufficient (PC 186.22)
See People v. Sengpadychith (2001) 26C4th 316, 322.
CALJIC NOTE: See FORECITE F 17.24.2 n3.
F 1401 Note 4 Gangs: Whether Proposition 21 Violates Separation Of Powers
(See FORECITE F 1400 Note 16.)
CALJIC NOTE: See FORECITE F 17.24.2 n4.
F 1401 Note 5 Bifurcation Of Gang Enhancement: Severance Analysis
(See People v. Hernandez (2004) 33 C4th 1040.)
CALJIC NOTE: See FORECITE F 17.24.2 n5.
F 1401 Note 6 Multiple Crimes From A Single Occasion: Predicate Crimes For Gang Enhancement (PC 186.22(b))
See FORECITE F 3515.2 Note 18.
CALJIC NOTE: See FORECITE F 17.24.2 n6.
F 1401 Note 7 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”].
CALJIC NOTE: See FORECITE F 17.24.2 n7.
F 1401 Note 8Distinction Between Substantive Gang Offense (PC 186.22(a)) And Gang Enhancement (PC 186.22(b))
See FORECITE F 1400 Note 14.
F 1401 Note 9 Intent Need Not Be Labeled “Specific”
“Although the label “specific” was not affixed, the jury instruction’s description of the necessary intent is an accurate, exact representation of the intent required by section 186.22, subdivision (b). There is no reasonable likelihood that the instruction failed to convey to the jury the nature of this element of the gang enhancement allegation.” (People v. Stallworth (2008) 164 CA4th 1079, 1105. )
F 1401 Note 10 Improper To Instruct On Gang Enhancement When Defendant Was A Sole Perpetrator
“Although the People might prefer a different statute, PC 186.22(a) reflects the Legislature’s carefully structured endeavor to punish active participants for commission of criminal acts done collectively with gang members.” [emphasis in original] People v. Rodriguez (2012) 55 CA4th 1125. If the defendant acted alone in committing the predicate offense, he does not also violate section 186.22(a).
Accordingly, language such as the following should be added to CC 1401:
To prove this enhancement the prosecution must prove beyond a reasonable doubt that the defendant committed the offense in concert with at least one other member of the gang of which defendant was a member. If you find that the defendant directly and actively committed ________ <insert offense> you may not find this gang enhancement to be true unless the prosecution has proved beyond a reasonable doubt that he committed the offense in concert with at least one other member of the gang of which defendant was a member.
[Source: language suggested in People v. Rodriguez REV GTD/DEPUB’D (2011) 188 CA4th 722, 733-37.]
