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 (2020 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.
<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), (31)-(33)>;
AND
3. Whose members, whether acting alone or together, engage in or
have engaged in a pattern of criminal gang activity.
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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 organization, association, or group has, as one of
its primary activities, the commission of <insert felony or
felonies from Pen. Code, § 186.22(e)(1)-(25), (31)-(33)> 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):
1. <Give Alternative 1A if the crime or crimes are in Pen. Code,
§ 186.22(e)(1)-(25), (31)-(33).>
1. 1A. (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)-(25), (31)-(33)>;
1. [OR]
1. <Give Alternative 1B if one or more of the crimes are in Pen. Code,
§ 186.22(e)(26)-(30).>
1. 1B. [at least one of the following crimes:] <insert one
or more crimes from Pen. Code, § 186.22(e)(1)-(25), (31)-(33)>;
1. AND
1. [at least one of the following crimes:] <insert one or
more crimes in Pen. Code, § 186.22(e)(26)-(30)>;
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 were
personally committed by two or more persons.]
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<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 a member of the gang [or the defendant] committed
__________ <insert felony or felonies from Pen. Code, §
186.22(e)(1)-(33)> please refer to the separate instructions that I (will give/
have given) you on (that/those) crime[s].]
[The crimes, if any, that establish a pattern of criminal gang activity,
need not be gang-related.]
[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 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.]
<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 a member of the gang [or the defendant] committed
<insert felony or felonies from Pen. Code, § 186.22(e)(1)-(25),
(31-33)>, please refer to the separate instructions that I (will give/have
given) you on (that/those) crime[s].]
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
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].)
In element 2 of the paragraph defining a “criminal street gang,” insert one or more
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of the crimes listed in Penal Code section 186.22(e)(1)-(25), (31)-(33) that are
alleged to be the primary activities of the gang. (See People v. Sengpadychith,
supra, 26 Cal.4th at pp. 323-324.)
In element 1A 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]) if the alleged crime or crimes are listed in Penal Code
section 186.22(e)(1)-(25), (31)-(33). Give on request the bracketed phrase “any
combination of” if two or more different crimes are inserted in the blank. If one or
more of the alleged crimes are listed in Penal Code section 186.22(e)(26)-(30), give
element 1B and insert that crime or crimes and one or more of the crimes listed in
Penal Code section 186.22(e)(1)-(25), (31)-(33). (See Pen. Code, § 186.22(j) [“A
pattern of gang activity cannot be established solely by proof of commission of
offenses enumerated in paragraphs (26) to (30), inclusive, of subdivision (e),
alone.”].)
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.)
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 may bifurcate the trial on the gang enhancement, at its discretion. (People
v. Hernandez,supra, 33 Cal.4th at p. 1048.)
Related Instructions
CALCRIM No. 1400, Active Participation in Criminal Street Gang.
AUTHORITY
• Enhancement. Pen. Code, § 186.22(b)(1).
• “For the Benefit of, at the Direction of, or in Association With Any Criminal
Street Gang” Defined. People v. Albillar (2010) 51 Cal.4th 47, 59-64 [119
Cal.Rptr.3d 415, 244 P.3d 1062].
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• 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); see People v. Duran,
supra, 97 Cal.App.4th at pp. 1464-1465.
• Pattern of Criminal Gang Activity Defined. Pen. Code, § 186.22(e), (j); 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];
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].
• 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, 290 P.3d 1143].
• 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
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
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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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