California Criminal Jury Instructions (CALCRIM) (2017)

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

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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 [in
violation of Penal Code section 190.2(a)(22)].
To prove that this special circumstance is true, the People must prove
that:
1. The defendant intentionally killed <insert name of
victim>;
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), (31)–(33)>;
AND
3. Whose members, whether acting alone or together, engage in or
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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.
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):
<Give 1A if the crime or crimes are in Pen. Code, § 186.22(e)(1)–(25),
(31)–(33)>
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)>;
[OR]
<Give 1B if one or more of the crimes are in Pen. Code,
§ 186.22(e)(26)–(30)>
1B. [at least one of the following crimes:] <insert one or
more crimes from Pen. Code, § 186.22(e)(1)–(25), (31)–(33)>
AND
[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 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.]
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[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)–(33) inserted in definition of
pattern of criminal gang activity>.]
New January 2006; Revised August 2006, June 2007, February 2014, February
2016
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 2 of the paragraph defining a “criminal street gang,” insert one or more
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
(2001) 26 Cal.4th 316, 323–324 [109 Cal.Rptr.2d 851, 27 P.3d 739].)
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.”].)
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,supra, 26
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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
to CALCRIM No. 1400, Active Participation in Criminal Street 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. 562, Transferred Intent.
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,
supra, 97 Cal.App.4th at pp. 1464–1465.
• Transferred Intent Under Penal Code Section 190.2(a)(22). People v. Shabazz
(2006) 38 Cal.4th 55 [40 Cal.Rptr.3d 750, 130 P.3d 519].
• 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].
• 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].
• 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].
Secondary Sources
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 523.
4Millman, 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,
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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.
The criminal street gang special circumstance applies when a participant in a
criminal street gang intends to kill one person but kills someone else by mistake.
People v. Shabazz (2006) 38 Cal.4th 55, 66 [40 Cal.Rptr.3d 750, 130 P.3d 519]; see
CALCRIM No. 562, Transferred Intent.
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