Gang Special Circumstance
August 17th, 2015


People v. Carr (2010) 190 Cal. App. 4th 475, 486, held that CC 736’s “inclusion of a knowledge element in the special circumstances of killing on behalf of a gang is not legally incorrect even if the statute itself does not expressly require its inclusion because it is constitutionally required.” Carr did note, however, that the CJ equivalent’s Comments on its instruction were wrong: CJ 8.81.22’s Comments stated that “Since that same language is found in Penal Code § 190.2(a)(22), the committee has included the pertinent elements of that section into its definition of the essential elements of this special circumstance allegation.” (Ibid.) As Carr explained,“section 190.22, subdivision (a)(22), does not incorporate subdivision (a) of section 186.22, which defines the substantive criminal offense of active gang participation; instead, it incorporates subdivision (f) of section 186.22, the subdivision that defines the term ‘criminal street gang.’” (Ibid.)

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