CALCRIM No. 736. Special Circumstances: Killing by Street Gang Member (Pen. Code, § 190.2(a)(22))

Judicial Council of California Criminal Jury Instructions (2022 edition)

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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 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;
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
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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) (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 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.
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 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.]
[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) inserted in definition of pattern of
criminal gang activity>.]
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New January 2006; Revised August 2006, June 2007, February 2014, February
2016, March 2022
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.
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(j).)
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.Rptr.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.)
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. 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).
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), (g).
Examples of Common Benefit. Pen. Code, § 186.22(g).
Felonious Criminal Conduct Defined. People v. Green (1991) 227 Cal.App.3d
692, 704 [278 Cal.Rptr. 140] [abrogated on other grounds by People v.
Castenada (2000) 23 Cal.4th 743, 747-748 [97 Cal.Rptr.2d 906, 3 P.3d 278].
Separate Intent From Underlying Felony. People v. Herrera (1999) 70
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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].
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.
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 523.
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).
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