Criminal Law

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1403. Limited Purpose of Evidence of Gang Activity

You may consider evidence of gang activity only for the limited purpose of deciding whether:

[The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related (crime[s]/ [and] enhancement[s]/ [and] special circumstance allegations) charged(;/.)]

[OR]

[The defendant had a motive to commit the crime[s] charged(;/.)]

[OR]

[The defendant actually believed in the need to defend (himself/herself)(;/.)]

[OR]

[The defendant acted in the heat of passion(;/.)]

[OR]

[ <insert other reason court admitted gang evidence>.]

[You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion.]

You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that (he/she) has a disposition to commit crime.

Bench Notes

Instructional Duty

On request, the court must give a limiting instruction when evidence of gang activity has been admitted. (People v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052 [16 Cal.Rptr.3d 880, 94 P.3d 1080].) There is, however, no sua sponte duty to instruct the jury on this issue.

Authority

Instruction Must Be Given on Request. People v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052 [16 Cal.Rptr.3d 880, 94 P.3d 1080].

Secondary Sources

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes Against Order, 144.03[2] (Matthew Bender).

(New January 2006)