736. Special Circumstances: Killing by Street Gang Member, Pen. Code, § 190.2(a)(22)

The defendant is charged with the special circumstance of committing murder while an active participant in a criminal street gang.

To prove that this special circumstance is true, the People must prove that:

1. The defendant intended to kill;

2. At the time of the killing, the defendant was an active participant in a criminal street gang;

3. The defendant knew that members of the gang engage in or have engaged in a pattern of criminal gang activity;

AND

4. The murder was carried out to further the activities of the criminal street gang.

Active participation means involvement with a criminal street gang in a way that is more than passive or in name only.

[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.]

<If criminal street gang has already been defined>

[A criminal street gang is defined in another instruction to which you should refer.]

<If criminal street gang has not already been defined in another instruction>

[A criminal street gang is any ongoing organization, association, or group of three or more persons, whether formal or informal:

1. That has a common name or common identifying sign or symbol;

2. 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.

In order to qualify as a primary activity, the crime must be one of the group's chief or principal activities rather than an occasional act committed by one or more persons who happen to be members of the group.

A pattern of criminal gang activity, as used here, means:

1. [The] (commission of[,]/ [or] attempted commission of[,]/ [or] conspiracy to commit[,]/ [or] solicitation to commit[,]/ [or] conviction of[,]/ [or] (Having/having) a juvenile petition sustained for commission of) [any combination of two or more of the following crimes]: <insert one or more crimes listed in Pen. Code, § 186.22(e)(1)- (25)>.

2. At least one of those crimes was committed after September 26, 1988.

3. The most recent crime occurred within three years of one of the earlier crimes.

AND

4. The crimes were committed on separate occasions, or by two or more persons.]

[The crimes, if any, that establish a pattern of criminal gang activity, need not be gang-related.]

[If you find the defendant guilty of a crime in this case, you may consider that crime in deciding whether one of the group's primary activities was commission of that crime and whether a pattern of criminal gang activity has been proved.]

[You may not find that there was a pattern of criminal gang activity unless all of you agree that two or more crimes that satisfy these requirements were committed, but you do not have to all agree on which crimes were committed.]

Other instructions explain what is necessary for the People to prove that a member of the gang [or the defendant] committed <insert crimes from Pen. Code, § 186.22(e)(1)-(25) inserted in definition of pattern of criminal gang activity>.

Bench Notes

Instructional Duty

The court has a sua sponte duty to instruct on the elements of the special circumstance. (See People v. Williams (1997) 16 Cal.4th 635, 689 [66 Cal.Rptr.2d 573, 941 P.2d 752].) The effective date of this special circumstance was March 8, 2000.

In element 1 of the paragraph defining a "pattern of criminal gang activity," insert one or more of the crimes listed in Penal Code section 186.22(e) that have been committed, attempted, or solicited two or more times. (See In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1002-1003 [279 Cal.Rptr. 236] [two instances of same offense, or single incident with multiple participants committing one or more specified offenses, are sufficient].) Give on request the bracketed phrase "any combination of" if two or more different crimes are inserted in the blank.

On request, give the bracketed paragraph that begins with "The People do not need to prove that the defendant devoted all or a substantial part of . . . ." (See Pen. Code, § 186.22(i).)

On request, give the bracketed paragraph that begins with "If you find the defendant guilty of a crime in this case." (People v. Sengpadychith (2001) 26 Cal.4th 316, 322-323 [109 Cal.2d 851, 27 P.3d 739]; People v. Duran (2002) 97 Cal.App.4th 1448, 1464-1465 [119 Cal.Rptr.2d 272].)

On request, give the bracketed paragraph that begins with "You may not find that there was a pattern of criminal gang activity." (People v. Funes (1994) 23 Cal.App.4th 1506, 1527-1528 [28 Cal.Rptr.2d 758]; see also Related Issues section to CALCRIM No. 1400, Active Participation in Criminal Street Gang Gang.)

On request, the court must give a limiting instruction on the gang evidence. (People v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052 [16 Cal.Rptr.3d 880, 94 P.3d 1080].) If requested, give CALCRIM No. 1403, Limited Purpose of Evidence of Gang Activity.

Related Instructions

CALCRIM No. 1400, Active Participation in Criminal Street Gang.

Authority

Special Circumstance. Pen. Code, § 190.2(a)(22).

Active Participation Defined. Pen. Code, § 186.22(i); People v. Castenada (2000) 23 Cal.4th 743, 747 [97 Cal.Rptr.2d 906, 3 P.3d 278].

Criminal Street Gang Defined. Pen. Code, § 186.22(f); see People v. Duran (2002) 97 Cal.App.4th 1448, 1464-1465 [119 Cal.Rptr.2d 272].

Pattern of Criminal Gang Activity Defined. Pen. Code, § 186.22(e); People v. Gardeley (1996) 14 Cal.4th 605, 624-625 [59 Cal.Rptr.2d 356, 927 P.2d 713]; In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1002-1003 [279 Cal.Rptr. 236].

Felonious Criminal Conduct Defined. People v. Green (1991) 227 Cal.App.3d 692, 704 [278 Cal.Rptr. 140].

Separate Intent From Underlying Felony. People v. Herrera (1999) 70 Cal.App.4th 1456, 1467-1468 [83 Cal.Rptr.2d 307].

Secondary Sources

3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, § 443.

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death Penalty, §§ 87.13[22], 87.14 (Matthew Bender).

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes Against Order, § 144.03[3][a] (Matthew Bender).

Related Issues

See the Bench Notes and Related Issues section to CALCRIM No. 1400, Active Participation in Criminal Street Gang.

(New January 2006)