CALCRIM No. 1401. Felony or Misdemeanor Committed for Benefit of Criminal Street Gang (Pen. Code, § 186.22(b)(1) (Felony) and § 186.22(d) (Felony or Misdemeanor))

Judicial Council of California Criminal Jury Instructions (2022 edition)

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1401.Felony or Misdemeanor Committed for Benefit of Criminal
Street Gang (Pen. Code, § 186.22(b)(1) (Felony) and § 186.22(d)
(Felony or Misdemeanor))
If you find the defendant guilty of the crime[s] charged in Count[s]
[,] [or of attempting to commit (that/those crime[s])][,][or the
lesser offense[s] of <insert lesser offense[s]>], you must then
decide whether[, for each crime,] the People have proved the additional
allegation that the defendant committed that crime (for the benefit of[,]/
at the direction of[,]/ [or] in association with) a criminal street gang.
[You must decide whether the People have proved this allegation for
each crime and return a separate finding for each crime.]
[You must also decide whether the crime[s] charged in Count[s]
(was/were) committed on the grounds of, or within 1,000 feet of a public
or private (elementary/ [or] vocational/ [or] junior high/ [or] middle
school/ [or] high) school open to or being used by minors for classes or
school-related programs at the time.]
To prove this allegation, the People must prove that:
1. The defendant (committed/ [or] attempted to commit) the crime
(for the benefit of[,]/ at the direction of[,]/ [or] in association with)
a criminal street gang;
AND
2. The defendant intended to assist, further, or promote criminal
conduct by gang members.
To benefit, promote, further, or assist means to provide a common
benefit to members of a gang where the common benefit is more than
reputational. Examples of a common benefit that are more than
reputational may include, but are not limited to, financial gain or
motivation, retaliation, targeting a perceived or actual gang rival, or
intimidation or silencing of a potential current or previous witness or
informant.
<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 an ongoing organized association or group of
three or more persons, whether formal or informal:
1. That has a common name or common identifying sign or symbol;
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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)>;
AND
3. Whose members collectively 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.]
<Give this paragraph only when the conduct that establishes the pattern of
criminal gang activity, i.e., predicate offenses, has not resulted in a
conviction or sustained juvenile petition.>
[To decide whether the organized association or group has, as one of its
primary activities, the commission of <insert felony or
felonies from Pen. Code, § 186.22(e)(1)> please refer to the separate
instructions that I (will give/have given) you on (that/those) crime[s].]
Apattern 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/[,][or] two or more occurrences of [one or more
of the following crimes]:) <insert one or more crimes
listed in Pen. Code, § 186.22(e)(1)>;
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 within three years of the date of the charged
offense;
4. The crimes were committed on separate occasions or were
personally committed by two or more members;
5. The crimes commonly benefitted a criminal street gang;
AND
6. The common benefit from the crimes was more than reputational.
<Give this paragraph only when the conduct that establishes the pattern of
criminal gang activity, i.e., predicate offenses, has not resulted in a
conviction or sustained juvenile petition.>
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[To decide whether a member of the gang [or the defendant] committed
<insert felony or felonies from Pen. Code, § 186.22(e)(1)>
please refer to the separate instructions that I (will give/have given) you
on (that/those) crime[s].]
[The People need not prove that the defendant is an active or current
member of the alleged criminal street gang.]
[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.]
[You may not consider evidence of the charged offense[s] in deciding
whether a pattern of criminal gang activity has been established.]
[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.]
The People have the burden of proving each allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
that the allegation has not been proved.
New January 2006; Revised August 2006, June 2007, April 2008, December 2008,
August 2012, February 2013, August 2013, February 2014, February 2016, March
2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
sentencing enhancement. (People v. Sengpadychith (2001) 26 Cal.4th 316, 327 [109
Cal.Rptr.2d 851, 27 P.3d 739]; Apprendi v. New Jersey (2000) 530 U.S. 466,
475-476, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].)
The court should also give the appropriate instructions defining the elements of
crimes inserted in the list of alleged “primary activities,” or the definition of
“pattern of criminal gang activity” that have not been established by prior
convictions or sustained juvenile petitions.
On request, give the bracketed paragraph that begins with “If you find the defendant
guilty of a crime in this case.” (People v. Sengpadychith,supra, 26 Cal.4th at pp.
322-323; 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
below on Unanimity.)
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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 Gang Evidence.
The court must bifurcate the trial on the gang enhancement upon request of the
defense. (Pen. Code, § 1109(a).) If the trial is bifurcated, give CALCRIM No. 221,
Reasonable Doubt: Bifurcated Trial.
Related Instructions
CALCRIM No. 1400, Active Participation in Criminal Street Gang.
AUTHORITY
Enhancement. Pen. Code, § 186.22(b)(1).
Specific Intent Defined. People v. Albillar (2010) 51 Cal.4th 47, 64-68 [119
Cal.Rptr.3d 415, 244 P.3d 1062].
Criminal Street Gang Defined. Pen. Code, § 186.22(f).
Pattern of Criminal Gang Activity Defined. Pen. Code, § 186.22(e), (g); see
People v. Zermeno (1999) 21 Cal.4th 927, 931-932 [89 Cal.Rptr.2d 863, 986
P.2d 196] [conviction of perpetrator and aider and abettor for single crime
establishes only single predicate offense].
“To Benefit, Promote, Further, or Assist” Defined. Pen. Code, § 186.22(g).
Active or Current Participation in Gang Not Required. In re Ramon T. (1997)
57 Cal.App.4th 201, 207 [66 Cal.Rptr.2d 816].
Primary Activities Defined. People v. Sengpadychith,supra, 26 Cal.4th at pp.
323-324.
Defendant Need Not Act With Another Gang Member. People v. Rodriguez
(2012) 55 Cal.4th 1125, 1138-1139 [150 Cal.Rptr.3d 533].
Crimes Committed After Charged Offense Not Predicates. People v. Duran,
supra, 97 Cal.App.4th at p. 1458.
Proof of Sufficient Connection Among Gang “Subsets” and Umbrella Gang
Required. People v. Prunty (2015) 62 Cal.4th 59, 81-85 [192 Cal.Rptr.3d 309,
355 P.3d 480].
RELATED ISSUES
Commission On or Near School Grounds
In imposing a sentence under Penal Code section 186.22(b)(1), it is a circumstance
in aggravation if the defendant’s underlying felony was committed on or within
1,000 feet of specified schools. (Pen. Code, § 186.22(b)(2).)
Enhancements for Multiple Gang Crimes
Separate criminal street gang enhancements may be applied to gang crimes
committed against separate victims at different times and places, with multiple
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criminal intents. (People v. Akins (1997) 56 Cal.App.4th 331, 339-340 [65
Cal.Rptr.2d 338].)
Wobblers
Specific punishments apply to any person convicted of an offense punishable as a
felony or a misdemeanor that is committed for the benefit of a criminal street gang
and with the intent to promote criminal conduct by gang members. (See Pen. Code,
§ 186.22(d); see also Robert L. v. Superior Court (2003) 30 Cal.4th 894, 909 [135
Cal.Rptr.2d 30, 69 P.3d 951].) However, the felony enhancement provided by Penal
Code section 186.22(b)(1) cannot be applied to a misdemeanor offense made a
felony pursuant to section 186.22(d). (People v. Arroyas (2002) 96 Cal.App.4th
1439, 1449 [118 Cal.Rptr.2d 380].)
Murder - Enhancements Under Penal Code section 186.22(b)(1) May Not Apply at
Sentencing
The enhancements provided by Penal Code section 186.22(b)(1) do not apply to
crimes “punishable by imprisonment in the state prison for life . . .” (Pen. Code,
§ 186.22(b)(5); People v. Lopez (2005) 34 Cal.4th 1002, 1004 [22 Cal.Rptr.3d 869,
103 P.3d 270].) Thus, the 10-year enhancement provided by Penal Code section
186.22(b)(1)(C) for a violent felony committed for the benefit of the street gang
may not apply in some sentencing situations involving the crime of murder.
See also the Related Issues section to CALCRIM No. 1400, Active Participation in
Criminal Street Gang.
SECONDARY SOURCES
2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Public Peace
and Welfare, § 40.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.43 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.03 (Matthew Bender).
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