Greg Dohi’s Penal Code, § 186 - Alliance of California ...



The STEP Act

(Penal Code § 186.22)

Judge Gregory A. Dohi

Los Angeles Superior Court

September 2008, rev. June 2009, January 2010, and October 2016

(with many thanks to Theresa Jauregui and the JES staff, who Shepardized an earlier version of this handout)

TABLE OF CONTENTS

I. INTRODUCTION 1

A. Legislative Findings

B. Constitutionality

II. THE DEFINITION OF A GANG 3

A. Three or more members

B. Common sign or symbol

C. Primary activities

D. Pattern of criminal activity

III. THE (A) SECTION: THE SUBSTANTIVE OFFENSE OF ACTIVELY PARTICIPATING IN A GANG 15

A. Elements

B. Section 654 issues

C. Three Strikes

D. The (A) Section and Realignment

IV. THE (B) SECTION: THE GANG ENHANCEMENT 20

A. Sentences

B. Striking the enhancement

C. Elements

—“for the benefit of”

—“in association with”

-—Specific intent

D. Cases in which evidence did not support a true finding as to the gang enhancement.

E. Bifurcation

F. Section 654 issues/consecutive sentencing

G. Preliminary hearings

H. Three Strikes

I. Instructions

V. THE (D) SECTION: THE ALTERNATIVE PENALTY PROVISION 35

VI. RELATED STATUTES 36

An Overview of the STEP Act (Pen. Code, section 186.22)

Greg Dohi

Los Angeles Superior Court

09/2008, revised 06/2009, 10/2016

I. INTRODUCTION

The Legislature passed the Street Terrorism Enforcement and Prevention (STEP) Act as emergency legislation (Stats. 1988, ch. 1242, § 1, pp. 4127-4130; Stats. 1988, ch. 1256, § 1, pp. 4178-4185) with Los Angeles County specifically in mind (see In re Alberto R. (1991) 235 Cal.App.3d 1309, 1318). It took effect on September 26, 1988. (People v. Gardeley (1996) 14 Cal.4th 605, 625, disapproved on other grounds in People v. Sanchez (2016) 63 Cal.4th 665, 686; In re Lincoln J. (1990) 223 Cal.App.3d 322, 328 fn. 2.) Two coordinated bills which took effect on January 1, 1997 repealed the sunset date, added language, and renumbered the subdivisions. (Stats. 1996, ch. 873, § 1; Stats. 1996, ch. 982, § 1.) Proposition 21, which passed on March 7, 2000, increased the STEP Act sentences, added a number of new anti-gang laws, and rearranged the numbering yet again. In 2005 and again in 2006, the Legislature added to the list of predicate acts. The STEP Act’s determinate sentencing provisions were tweaked in 2009 and 2010 the wake of Cunningham v. California (2007) 549 U.S. 270, and again in 2011 after Realignment.

This tortuous legislative path has culminated in one very complicated piece of legislation. Appellate courts have noted that the legislative history of some of the STEP Act’s provisions was “muddled” (People v. Loeun (1997) 17 Cal.4th 1, 13), that some of its phrases “impart some uncertainty” and certain of its provisions are “superfluous” (People v. Green (1991) 227 Cal.App.3d 692, 704), and that it presents a “thicket of statutory construction issues” (People v. Sengpadychith (2001) 26 Cal.4th 316, 319).

The STEP Act has three main parts. The (a) section created the substantive crime of knowing participation and willful furtherance of felonious conduct by members of a criminal street gang. It’s a “wobbler,” punishable either as a felony or a misdemeanor. The (b) section created an enhancement which applies to felonies committed for the benefit of a criminal street gang with the specific intent to further criminal conduct by gang members. The (d) section created an alternate penalty provision which allows gang-related misdemeanors to be punished as felonies and sets a six-month minimum sentence.

A. Legislative findings

The STEP Act has a preamble that contains a list of legislative findings:

“The Legislature . . . further finds that the State of California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods. These activities, both individually and collectively, present a clear and present danger to public order and safety and are not constitutionally protected. . . . It is the intent of the Legislature in enacting this chapter to seek the eradication of criminal activity by street gangs by focusing upon patterns of criminal gang activity and upon the organized nature of street gangs, which together, are the chief source of terror created by street gangs.” (Penal Code, § 186.21.)

In 2000, the voters passed Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998. It took effect on March 8, 2000, the day after the election. It also begins with a set of findings, among them section 2, subdivision (g): “Gang-related crimes pose a unique threat to the public because of gang members’ organization and solidarity. Gang-related felonies should result in severe penalties.”

B. Constitutionality

• The STEP Act is not unconstitutionally vague or overbroad.

o People v. Green (1991) 227 Cal.App.3d 692, 698-704 [upholding the active participation, gang membership, and knowledge requirements in § 186.22, subd. (a), as well as the definition of a criminal street gang and a pattern of criminal gang activity and the phrase “willfully promotes, furthers, or assists in any felonious criminal conduct”], superseded on another point by statute, as noted in People v. Englebrecht (2001) 88 Cal.App.4th 1236, 1259 n. 8

o In re Alberto R. (1991) 235 Cal.App.3d 1309, 1321-1324 [upholding the (b) section]

• It doesn’t violate the right of free association.

o People v. Loeun (1997) 17 Cal.4th 1, 11

o People v. Gamez (1991) 235 Cal.App.3d 957, 969-973 [upholding the constitutionality of the (b) section], disapproved on other grounds in People v. Gardeley (1996) 14 Cal.4th 605, 624 fn. 10, disapproved on other grounds in People v. Sanchez (2016) 63 Cal.4th 665, 686

• It doesn’t violate due process.

o People v. Loeun (1997) 17 Cal.4th 1, 11

o People v. Superior Court (Johnson) (2004) 120 Cal.App.4th 950, 958

o People v. Gardeley (1996) 14 Cal.4th 605, 622-624, disapproved on other grounds in People v. Sanchez (2016) 63 Cal.4th 665, 686

o In re Alberto R. (1991) 235 Cal.App.3d 1309, 1323

• It doesn’t violate the equal protection clause.

o In re Alberto R. (1991) 235 Cal.App.3d 1309, 1324

• It doesn’t violate the ban on ex post facto laws.

o People v. Loeun (1997) 17 Cal.4th 1, 11

II. THE DEFINITION OF A GANG

At the core of both the (a) section substantive crime and the (b) section enhancement is the STEP Act’s detailed definition of a criminal street gang. The Legislature has borrowed this definition in drafting several other statutes which are discussed below in section VI.

Penal Code, § 186.22, subd. (f) defines a “criminal street gang” as “an ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or paragraphs (31) to (33), inclusive, of [Pen. Code, § 186.22] subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” [Emphasis added.]

A group does not have to be violent in order to qualify as a criminal street gang. A tagging crew can qualify as a criminal street gang. (See People v. Superior Court (Johnson) (2004) 120 Cal.App.4th 950, 956 [“Little if any statutory construction is required to see that a group of more than three people, having a common name or symbol, having as its primary activities the commission of the crime of felony vandalism, and whose members have committed and conspired to commit the crime on many separate occasions, is a criminal street gang under the STEP Act.”].)

A. Three or more members

• Proof of the gang’s size can take the following forms:

o eyewitness testimony that the underlying crime involved three or more participants (see In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1001)

o membership roll graffiti written on a wall (see In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1001)

o expert testimony (see, e.g., People v. Gardeley (1996) 14 Cal.4th 605, 620, disapproved on other grounds in People v. Sanchez (2016) 63 Cal.4th 665, 686)

B. Common name or identifying sign or symbol

• The group does not need both a common name and a common symbol.

o See In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1001 [referring to “both alternatives for satisfying this element”]

• The group can have more than one name, so long as one name is common to the gang’s members.

o In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1001 [gang was known both as the “Tongan Family” and the “Family”]

• The prosecution can use expert testimony, particularly as to the meaning of graffiti, to prove this element.

o See People v. Champion (1995) 9 Cal.4th 879, 920 [photographs of gang graffiti in a park showing defendants’ monikers, gang affiliations], disapproved on another point in People v. Ray (1996) 13 Cal.4th 313, 369 fn. 2 [conc. opn.] [NOTE: Champion didn’t involve the gang enhancement, just the use of an expert to interpret graffiti.]

o See People v. Fudge (1994) 7 Cal.4th 1075, 1091 [gang expert interpreted graffiti on defendant’s jail cell to mean that defendant was the leader of the Van Ness Gangsters, that he was a murderer of Crips, and that he was responsible for the deaths of Crips members on 54th Street] [NOTE: Fudge didn’t involve the gang enhancement either.]

o See People v. Woods (1991) 226 Cal.App.3d 1037, 1045 [gang officer testified to the meaning of a roster for the Five-Nine East Coast Crips found in defendant’s home] [NOTE: Woods also didn’t involve the gang enhancement.]

• Just because two gangs share a name doesn’t mean that they are the same gang for the purposes of the STEP Act.

o People v. Williams (2008) 167 Cal.App.4th 983, 988 [expert testimony about the Peckerwoods didn’t establish that the Small Town Peckerwoods was a gang: “In our view, something more than a shared ideology or philosophy, or a name that contains the same word, must be shown before multiple units can be treated as a whole when determining whether a group constitutes a criminal street gang. Instead, some sort of collaborative activities or collective organizational structure must be inferable from the evidence, so that the various groups reasonably can b viewed as parts of the same overall structure.”]

C. Primary activities

If members of a group only occasionally engage in crime, then the group isn’t a criminal street gang: “The phrase ‘primary activities,’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323-324.) “Sufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony. . . .” (Sengpadychith, 26 Cal.4th 316, 324 [emphasis in original].)

o See People v. Perez (2004) 118 Cal.App.4th 151, 160 [“[E]vidence of the retaliatory shootings of a few individuals over a period of less than a week, together with a beating six years earlier, was insufficient to establish that ‘the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute.’ [Citing Sengpadychith; emphasis in original.]”

o See also In re Alexander L. (2007) 149 Cal.App.4th 605 [proof of two assaults in two years by a gang of 105 members did not “provide substantial evidence that gang members had ‘consistently and repeatedly . . . committed criminal activity listed in the gang statute.’ [Citing Sengpadychith; emphasis in original.]”]

The prosecution has to show that one of the gang’s primary activities is one of the first 25 crimes and last three crimes listed in Pen. Code, § 186.22, subd. (e) [see the next section]. The list includes most violent felonies. Note that the list also includes such common crimes as possession of drugs for sale (Health & Saf. Code, § 11351) and auto theft (Veh. Code, § 10851 or Pen. Code, § 487).

• Proof of the group’s primary activities:

o Prosecutors may use expert testimony (see People v. Gardeley (1996) 14 Cal.4th 605, 620, disapproved on other grounds in People v. Sanchez (2016) 63 Cal.4th 665, 686 [expert testified that Gardeley’s gang had been involved in selling drugs and intimidating witnesses]; People v. Vy (2004) 124 Cal.App.4th 1209, 1223 fn. 9; People v. Duran (2002) 97 Cal.App.4th 1448, 1465); see also People v. Nguyen (2015) 61 Cal.4th 1015, 1068 [“In the present case, Westminster Police Detective Mark Nye testified as an expert on gangs. He said that some of the primary activities of the Nip Family gang were ‘homicides, attempted homicides, assaults, assault[s] with deadly weapons, home invasion robberies, burglaries, auto theft, narcotic sales.’ Nearly all of these are crimes enumerated in the statute. (§ 186.22, subd. (e).) This evidence was sufficient.”]

o . . . about prior crimes or the charged crimes: “[E]ither prior conduct or acts committed at the time of the charged offenses can be used to establish the ‘primary activities’ element of the gang enhancement statute.” (People v. Galvan (1998) 68 Cal.App.4th 1135, 1140, disapproving In re Elodio O. (1997) 56 Cal.App.4th 1175, 1177, 1180-1181.) “Both past and present offenses have some tendency in reason to show the group’s primary activity (see Evid. Code, § 210) and therefore fall within the general rule of admissibility (id. at § 351).” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323, also disapproving In re Elodio O.)

In other words, an expert may base his or her opinion of the gang’s primary activities entirely upon what the gang did in the charged offenses.

Proof of primary activities can also come from wiretaps and recorded jailhouse conversations. See, e.g., People v. Arauz (2012) 210 Cal.App.4th 1394, 1403 [“The recorded telephone wiretaps were properly admitted to show that the Colonia Chiques was a criminal street gang, appellants’ gang membership and activities, and to prove identity, intent, knowledge, and motive. The telephone calls established the primary activities of the Colonia Chiques gang (robberies, drug sales, violent assaults, homicides), appellants’ relationship with Velasquez, and how appellants committed a retaliatory shooting in El Rio.”]

D. The pattern of criminal activity

A “pattern of criminal gang activity” is “the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more [listed] offenses, provided at least one of these offenses occurred after the effective date of this chapter [9/23/88] and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons . . . . ” (Pen. Code, § 186.22, subd. (e).) The acts that make up the pattern are often referred to as predicates.

In other words, the prosecution has to prove that the gang committed two or more of the listed offenses on separate occasions or that two or more gang members together committed one of the listed offenses within three years since 1988.[1]

• The 33 offenses are listed in Pen. Code, § 186.22, subd. (e):

o Assault with a deadly weapon or by means of force likely to produce great bodily injury (Pen. Code, § 245)[2]

o Robbery (Pen. Code, § 211)

o Unlawful homicide or manslaughter

o Sale, possession for sale, transportation, manufacture, etc. of drugs (Health & Saf. Code, §§ 11351 et seq)

o Shooting at an inhabited dwelling or occupied motor vehicle (Pen. Code, § 246)

o Discharging or permitting the discharge of a gun from a car (Pen. Code, § 12034)

o Witness intimidation (Pen. Code, § 136.1)

o Arson (Pen. Code, § 450)

o Grand theft (Pen. Code, § 487, subds. (a) [more than $400] or (c) [grand theft person]) [modified by Prop 21]

o Grand theft of any firearm, vehicle, trailer, or vessel [modified by Prop 21]

o Burglary (Pen. Code, § 459)

o Rape (Pen. Code, § 261)

o Looting (Pen. Code, § 463)

o Money laundering (Pen. Code, § 186.10)

o Kidnapping (Pen. Code, § 207)

o Mayhem (Pen. Code, § 203)

o Aggravated mayhem (Pen. Code, § 205)

o Torture (Pen. Code, § 206)

o Felony extortion (Pen. Code, §§ 518, 520)

o Felony vandalism (Pen. Code, § 594, subd. (b))

o Carjacking (Pen. Code, § 215)

o Sale, delivery, or transfer of a gun (Pen. Code, § 12072)

o Possession of a concealed firearm (Pen. Code, § 12101)

o Terrorist threats (Pen. Code, § 422) [added by Prop 21]

o Vehicle taking (Veh. Code, § 10851) [added by Prop 21]

o Gun possession prohibited by Pen. Code, §§ 29800 et seq. (former § 12021 [e.g., “felon-with-a-firearm”] [added in 2006]

o Carrying a concealed firearm (Pen. Code, § 25400, formerly § 12031) [added in 2006]

o Carrying a loaded firearm (Pen. Code, § 25850, formerly § 12025) [added in 2006]

In 2005, the Legislature added the following identity theft crimes as predicates but specified that the entire “pattern of criminal activity” cannot be composed solely of these crimes:

o Felony theft of an access card or account information (Pen. Code, § 484e)

o Counterfeiting of an access card (Pen. Code, § 484f)

o Felony fraudulent use of an access card or account information (Pen. Code, § 484g)

o Unlawful use of personal identifying information (Pen. Code, § 530.5)

o Getting a phony DMV license or ID (Pen. Code, § 529.7)

• The acts need not have resulted in convictions.

o People v. Zermeno (1999) 21 Cal.4th 927, 932, fn. 2

o In re I.M. (2005) 125 Cal.App.4th 1195, 1206-1207 [predicate offense was being prosecuted but apparently had not yet finished its journey through the criminal justice system]

• The present crime—if it’s on the list—may count as part of the pattern; in other words, evidence of the present crime plus one other crime will satisfy the requirement.

o People v. Gardeley (1996) 14 Cal.4th 605, 624-625, disapproved on other grounds in People v. Sanchez (2016) 63 Cal.4th 665, 686 [statutory requirement met by evidence of (1) the charged offense of assault by means of force likely to produce great bodily injury, and (2) an earlier incident in which another member of the same gang had shot at an occupied dwelling].

o See In re José T. (1991) 230 Cal.App.3d 1455, 1462-1463 [minor, a Florencia 13 gang member, committed a carjack at 1:30 am and drove it in a drive-by murder later that morning; the two crimes established the pattern]

• Evidence of two separate crimes committed at the same time satisfies the requirement.

o People v. Louen (1997) 17 Cal.4th 1, 10-11 [statutory requirement met by evidence that (1) the defendant assaulted the victim with a baseball bat, while (2) a fellow gang member assaulted the same victim with a tire iron: “[T]he prosecution can establish the requisite ‘pattern’ exclusively through evidence of crimes committed contemporaneously with the charged incident.”]

• But a single crime committed by two or more gang members does not.

o People v. Zermeno (1999) 21 Cal.4th 927 [defendant hit victim with a beer bottle while his fellow gang members kept the victim’s friends from coming to his aid; only one offense occurred and the statutory requirement wasn’t met]

• The predicates don’t have to have occurred within three years of the charged offense, so long as they occurred within three years of each other.

o People v. Fiu (2008) 165 Cal.App.4th 360 [“[N]othing in section 186.22 requires that the predicate offenses have occurred within three years of the charged offense.”]

• The predicate can’t have occurred after the charged crime.

o People v. Godinez (1993) 17 Cal.App.4th 1363, 1368-1370

• The statute does not require proof that the gang violated two or more different sections of the Penal Code; two or more violations of the same section of the Penal Code will satisfy the requirement.

o People v. Loeun (1997) 17 Cal.4th 1, 10 fn. 4

o In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1001-1003

• Nothing in the statute requires that the predicate offenses have been gang-related (People v. Gardeley (1996) 14 Cal.4th 605, 624, fn. 10, disapproved on other grounds in People v. Sanchez (2016) 63 Cal.4th 665, 686; In re I.M. (2005) 125 Cal.App.4th 1195, 1206), or that the defendant participated in or even knew about them (see People v. Gamez (1991) 235 Cal.App.3d 957, 975, disapproved on other grounds in People v. Gardeley (1996) 14 Cal.4th 605, 624 fn. 10, disapproved on other grounds in People v. Sanchez (2016) 63 Cal.4th 665, 686). The statute doesn’t require of many of the wobblers on the list [such as GTA or burglary] that they have resulted in felony convictions.

• While the predicates must have been committed by gang members, the gang members who committed the predicate offenses need not have been members of the gang when they committed the predicate crimes. (People v. Augborne (2002) 104 Cal.App.4th 362, 375.)

• Crimes committed by the defendant himself or herself can count as predicates, but the court should carefully consider the likelihood of prejudice. (See People v. Leon (2008) 161 Cal.App.4th 149, 169 [harmless error].)

1. Proof of the predicate offenses

• Usually, the prosecution proves the predicates with certified documentation (certified abstracts of judgment or minute orders showing conviction, CDC packets, certified rap sheets[3]). (See People v. Gardeley (1996) 14 Cal.4th 605, 613-614, disapproved on other grounds in People v. Sanchez (2016) 63 Cal.4th 665, 686; People v. Ortiz (1997) 57 Cal.App.4th 480, 484 fn. 3).

• But there are other ways to prove the predicates, including:

o Testimony from victims from prior cases.

o Testimony of officers or prosecutors who were present during earlier trials and heard the evidence, or who investigated the earlier cases. (See People v. Villegas (2001) 92 Cal.App.4th 1217, 1227-1228 [officer testified about the conviction of defendant’s brother, an Elsinore Young Classics gang member, in a prior attempted murder case which the officer himself had investigated; prosecutor also asked the court to take judicial notice of the file in the prior case; Court of Appeal held that “the predicate offense here was sufficiently established, both by oral testimony and documentary evidence.”]

o The testimony of officers who personally know the gang member who committed the predicate offenses. (In re I.M. (2005) 125 Cal.App.4th 1195, 1206-1207 [probation officer personally knew the gang member who committed the predicate offenses, read reports regarding the predicate offenses, and knew that the gang member was being prosecuted for at least one of the predicate offenses].)

o The testimony of defendants from the predicate cases. (See People v. Lopez (1999) 71 Cal.App.4th 1550 [Orange County prosecutor in called a defendant from an earlier Southside case to testify about a gang-related assault he himself had committed; the gang member refused to testify].)

o By stipulation. (See, e.g., People v. Sanchez (2001) 26 Cal.4th 834, 844; People v. Vang (2001) 87 Cal.App.4th 554, 559 fn. 2.)

The following have been found not to constitute sufficient proof:

o The testimony of an officer who has no personal knowledge of the crime and who can only repeat what officers from another agency told him: “Such vague, secondhand testimony cannot constitute substantial evidence that the required offense by a gang member occurred.” (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1003; but compare In re I.M. (2005) 125 Cal.App.4th 1195, 1206-1207 [probation officer personally knew the gang member who committed the predicate offenses, read reports regarding the predicate offenses, and knew that the gang member was being prosecuted for at least one of the predicate offenses].)

o In re Lincoln J. (1990) 223 Cal.App.3d 322, 330-331 [in prosecution for assault with a deadly weapon by a Burbank BTR gang member, prosecution satisfied all the other requirements for the STEP Act but didn’t present any evidence of any predicate acts whatsoever]

o In re Leland D. (1990) 223 Cal.App.3d 251, 259 [in drug sales case, officer testified that Fresno Fink White Deuces had engaged in selling crack, stealing cars and assaults with deadly weapons; officer didn’t give time frame and based the opinion on hearsay statements from unidentified gang members and information about arrests of purported gang members: “Clearly, [the officer’s] ‘expert testimony’ based on nonspecific hearsay and arrest information does not constitute substantial evidence that the Fink White Deuces are a criminal street gang as defined by statute.”]

2. The predicates can involve different subsets of the same gang if the prosecution can establish “some associational or organizational connection.” The leading case on gang subsets is People v. Prunty (2015) 62 Cal.4th 59 [predicates from Vario Gardenland and Vario Centro Norteños did not establish required pattern in shooting case where Defendant was from Detroit subset of the Norteños group]:

“[W]e conclude that where the prosecution's case positing the existence of a single ‘criminal street gang’ for purposes of section 186.22(f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets. That connection may take the form of evidence of collaboration or organization, or the sharing of material information among the subsets of a larger group. Alternatively, it may be shown that the subsets are part of the same loosely hierarchical organization, even if the subsets themselves do not communicate or work together. And in other cases, the prosecution may show that various subset members exhibit behavior showing their self-identification with a larger group, thereby allowing those subsets to be treated as a single organization.” (Prunty, 62 Cal.4th 59, 71.)

See also People v. Nicholes (2016) 246 Cal.App.4th 836 [following Prunty; also involving Norteño sets]

See also People v. Ramirez (2016) 244 Cal.App.4th 800 [rejecting argument that the “Sureños” is a single gang that incorporates “[e]very Hispanic gang member that resides south of Bakersfield” and reversing gang allegation where prosecution used predicates from Eastside Rivas and Eastside Victoria]

But cf. People v. Miranda (2016) 2 Cal.App.5th 829, 841-842 [gang enhancement properly found in case arising from shank attack committed against a Los Angeles County jail inmate where his attackers, from different local gangs, were working together at the direction of Southside, a gang created by the Mexican Mafia: “The evidence here shows that this is one of ‘[t]he most straightforward cases’ of an associational or organizational connection. [Citing Prunty.]”]

And cf. People v. Vasquez (2016) 247 Cal.App.4th 909 [involving same detective as in Prunty; defendant was from Richardson Village Norteños set, but predicates were committed by Broderick Boys and a murder committed by a Norteño who was unaffiliated with any particular set; sets were linked through photos on websites]

And cf. People v. Ewing (2016) 244 Cal.App.4th 359 [evidence showed that Norteños seeking to establish a presence in Redding committed drug ripoff; defendant and companions did not claim any particular subset and identified simply as Norteños; predicates were all committed by Norteño and Norteño/Westwood Boys gang members]

And cf. People v. Valdez (1997) 58 Cal.App.4th 494, 508-509 [“Under the circumstances, the questions of how such a diverse group, which . . . represented seven different Norteño gangs, could have been acting for the benefit of a street gang and whether the participants were doing so presented matters far beyond the common experience of the jury and justified expert testimony. [W]e cannot say the trial court abused its discretion in finding that an expert opinion about whether the participants acted for the benefit of each and every gang represented by the caravan would be of assistance to the jury in evaluating the evidence and determining whether the prosecution had proved the enhancement allegation.”] [NOTE: The portions of Valdez regarding the various bases for expert opinions, as opposed to the subject matter, probably didn’t survive People v. Sanchez (2016) 63 Cal.4th 665.]

3. How many predicates is too many?

In People v. Hill (2011) 191 Cal.App.4th 1104, arising for a prosecution for possession of an assault rifle, the trial court properly allowed the prosecution’s gang expert to testify about eight predicate offenses. [NOTE: In the wake of People v. Sanchez (2016) 63 Cal.4th 665, a gang expert cannot convey case-specific hearsay regarding the facts of predicate offenses in the guise of describing the basis of an expert opinion.]

But see People v. Williams (2009) 170 Cal.App.4th 587, 608-610 [“[T]he prosecutor introduced evidence of at least eight crimes committed by GPC members. . . . We are unaware of any authority in which the court directly addressed the volume of evidence that may be introduced to establish the primary activities and predicate crimes elements of a gang enhancement or gang charge. However, any such evidence must be subject to scrutiny under Evidence Code section 352, and part of the analysis under that section is whether the evidence is cumulative. . . . The sheer volume of evidence extended the trial—and the burden on the judicial system and the jurors—beyond reasonable limits, and the endless discussions among the trial court and counsel concerning the admissibility of such evidence amounted to a virtual street brawl.”]

III. THE (A) SECTION: THE SUBSTANTIVE CRIME OF ACTIVELY PARTICIPATING IN A GANG

Penal Code, § 186.22, subdivision (a) “is a substantive offense whose gravamen is the participation in the gang itself.” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1467 [emphasis in original].) It reads in relevant part:

“Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.” [Emphasis added.]

A. The elements:

The crime created by the (a) section has three elements:

• Active participation—more than nominal or passive—in a criminal street gang ;

• Knowledge that the gang’s members have engaged in a pattern of criminal gang activity;

• Willfully promoting, furthering, or assisting in any felonious criminal conduct by gang members.

(People v. Lamas (2007) 42 Cal.4th 516, 523.)

1. Active participation

Before Prop 21, courts defined “active participation” in a gang as “a relationship with a criminal street gang which is (1) more than nominal, passive, inactive or purely technical, and (2) the person must devote all, or a substantial part of his time and efforts to the criminal street gang.” (People v. Green (1991) 227 Cal.App.3d 692, 700 [emphasis added].)

Prop 21 specifically changed this requirement. “In order to secure a conviction, or sustain a juvenile petition, pursuant to subdivision (a), it is not necessary for the prosecution to prove that a person devotes all, or a substantial part of his or her time or efforts to the criminal street gang . . . . Active participation in the criminal street gang is all that is required.” (Pen. Code, § 186.22, subd. (i) [emphasis added].)

Even without Prop 21, Green’s definition of “active participation” wouldn’t have survived. The California Supreme Court overturned Green on that point, holding that “active participation” simply means that the defendant’s involvement with the gang is “more than nominal or passive.” The prosecution doesn’t have to show that the defendant is a gang leader. (People v. Castenada (2000) 23 Cal.4th 743, 745-747 [officers had seen defendant in the presence of known Goldenwest gang members seven times in 16 months, and had given him written notice of Goldenwest’s status as a criminal street gang three times; defendant bragged that he “kicked back” with Goldenwest and “backed [them] up,” but denied having been initiated; expert properly testified that defendant must have been aware of Goldenwest’s criminal activities].)

The statute requires that the defendant be an active participant in a gang, but the defendant need not be a member. (In re Lincoln J. (1990) 223 Cal.App.3d 322, 330 fn. 4.) Prop 21 expressly made that point a part of the STEP Act. (Pen. Code, § 186.22, subd. (i).)

2. Knowledge of criminal gang activity

A defendant must have actual knowledge that the gang’s members engage in or have engaged in a pattern of criminal activity. (People v. Green (1991) 227 Cal.App.3d 692, 702, overruled on another point by Prop 21.).

Knowledge of the criminal nature of the gang can be proven through circumstantial evidence:

o People v. Castenada (2000) 23 Cal.4th 743, 746 [Ofc. Thomas Serafin of the Santa Ana Police testified that defendant must have been aware of the activities of the Goldenwest gang because he hung out with them, which suggested that he was a member]

o People v. Green (1991) 227 Cal.App.3d 692, 702 [“Whether ‘gossip’ or ‘braggadocio’ are sufficient to impute knowledge is a question for the jury.”]

In order to satisfy the knowledge requirement, some police agencies serve gang members with notices. (See, e.g., People v. Castenada (2000) 23 Cal.4th 743, 746.)

3. “Willfully promoting, furthering, or assisting”

In People v. Green (1991) 227 Cal.App.3d 692, 703, the Court of Appeal held that the phrase “willfully promotes, furthers, or assists in any felonious criminal conduct” is satisfied by aiding and abetting a felony. In other words, a gang member who is guilty of the substantive crime of being an active participant in a gang must also be guilty of aiding and abetting some other felony, or of being an accessory. (See People v. Castenada (2000) 23 Cal.4th 743, 749; People v. Herrera (1999) 70 Cal.App.4th 1456, 1467-1468.)

In People v. Ngoun (2001) 88 Cal.App.4th 432, the Court of Appeal rejected the argument that the (a) section applies only to aiders and abettors and not to direct perpetrators. In response to Ngoun, the CALJIC committee modified the jury instruction for active gang participation (CALJIC No. 6.50).

o Intent:

A defendant must have the intent to participate actively in a criminal street gang, but need not have the intent to commit a particular felony personally; for example, the statute would allow convictions for active gang participation against both the person who pulls the trigger in a drive-by murder and the gang member who later conceals the weapon, even though the latter never had the specific intent to kill. (See People v. Herrera (1999) 70 Cal.App.4th 1456, 1467-1468.)

o “Any felonious criminal conduct”:

The crime being “promoted, furthered or assisted” does not to be “gang-related”; it can’t be just any felony that a gang member might commit. (People v. Albillar (2011) 51 Cal.4th 47, 57: “All three elements [of the crime of active gang participation] can be satisfied without proof the felonious criminal conduct promoted, furthered, or assisted was gang related.”]

4. “Gang members”

The (a) section cannot be satisfied by felonious criminal conduct committed by the defendant acting alone. (People v. Rodriguez (2012) 55 Cal.4th 1125, disapproving People v. Salcido (2007) 149 Cal.App.4th 356 and People v. Sanchez (2009) 179 Cal.App.4th 709; see also People v. Rios (2013) 222 Cal.App.4th 542, 546: “[A] lone actor cannot violate section 186.22, subdivision (a). . . .”); People v. Johnson (2014) 229 Cal.App.4th 910 [defendant possessed gun, but was in the company of two gang members; the others encouraged defendant’s possession of a firearm, but defendant did not aid and abet his companions in the commission of felonious conduct]

The other person involved in committing the crime has to be a member of the defendant’s own gang; activity with a member of another gang will not suffice, unless the two gangs are subsets of a primary gang that typically work together. (People v. Velasco (2015) 235 Cal.App.4th 66 [defendant, from Puente 13, committed an attempted residential robbery with a member of 18th Street].)

5. Miscellany

One can commit the crime of conspiracy to actively participate in a gang. (People v. Johnson (2013) 57 Cal.4th 250, 260.)

The gang enhancement (Pen. Code, § 186.22, subd. (b)) can’t be tacked on to a conviction for the crime of gang participation. (People v. Nguyen (2015) 61 Cal.4th 1015, 1068.)

B. Section 654 issues/“Lesser included” issues

A defendant can be punished separately for another substantive crime—say, attempted murder—as well as for § 186.22, subd. (a). (See People v. Herrera (1999) 70 Cal.App.4th 1456, 1467-1468. A number of courts, however, have found situations in which § 654 precludes separate punishment. See People v. Vu (2006) 143 Cal.App.4th 1009, 1032-1034 [CHECK]; People v. Tran (2009) 177 Cal.App.4th 138, 163 [CHECK], People v. Sanchez (2009) 174 Cal.App.4th 709, 728-729.

A defendant can also be punished separately (and consecutively) for active participation under § 186.22, subd. (a) and for a crime which carries the gang enhancement under § 186.22, subd. (b). (In re José P. (2003) 106 Cal.App.4th 458 [defendant was properly sentenced to nine years for home invasion robbery plus 10 years for the gang enhancement plus another eight months for § 186.22, subd. (a) because the crimes had independent albeit simultaneous objectives: taking someone’s property and participating in a gang].)

But active participation in a gang is a lesser included crime of “gangster-with-a-gun” (Pen. Code, § 12031, subd. (a)(2)(C)); a defendant cannot be convicted of both crimes, let alone punished for both crimes. (People v. Flores (2005) 129 Cal.App.4th 174, 184.)

Attempted murder, robbery, vehicle theft, receiving stolen property, and mayhem are not necessarily included offenses of the (a) section. (People v. Burnell (2005) 132 Cal.App.4th 938.)

C. The (a) section and the “Three Strikes” law:

Prop 21 added several new crimes to the list of serious felonies in Pen. Code, § 1192.7, including: “(28) any felony offense, which would also constitute a felony violation of Section 186.22.” [Emphasis added.]

In People v. Briceno (2004) 34 Cal.4th 451, the Supreme Court held that any felony with an enhancement under Pen. Code, § 186.22, subd. (b) qualifies as a serious felony. It would follow that a felony conviction under subdivision (a) is also a serious felony (and therefore a strike). (See People v. Chaides (2014) 229 Cal.App.4th 1157, 1165.)

D. The (a) section and Realignment

The (a) section would have been amended in 2011 by AB 109 to make a felony non-probationary sentence for gang participation punishable in the County Jail under Pen. Code, § 1170, subd. (h). But AB 117 undid the change. Violations of the (a) section are punishable by incarceration in the state prison.

IV. THE (B) SECTION: THE ENHANCEMENT FOR GANG-RELATED FELONIES

Subdivision (b)(1) imposes additional punishment for felonies committed “for the benefit of, at the direction of, or in association with any criminal street gang.”

Note that the (b) section does not require that the defendant himself or herself be a gang member (see People v. Albillar (2011) 51 Cal.4th 47, 67-68 [“The enhancement . . . does not depend on membership in a gang at all”]; see also People v. Valdez (2012) 55 Cal.4th 82, 132), only that he or she committed the crime for the benefit of, at the direction of, or in association with a gang. The (b) section, unlike the (a) section, does not require proof that the defendant is an active participant in the gang (In re Ramon T. (1997) 57 Cal.App.4th 201, 206-207), or that he or she has personal knowledge of the gang’s criminal activities, or that he or she even know that the person he or she may be aiding and abetting is a gang member (People v. García (2016) 244 Cal.App.4th 1349, 1363.)

In general, the gang enhancement makes gang evidence more relevant:

• People v. Valdez (1997) 58 Cal.App.4th 494, 506 [“In general, where a gang enhancement is alleged, expert testimony concerning the culture, habits, and psychology of gangs is permissible because these subjects are ‘sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’ [Citations.]”]

• People v. Hernandez (2004) 33 Cal.4th 1040, 1050 [“[W]e conclude that the trial court’s discretion to deny bifurcation of a charged gang enhancement is similarly broader than its discretion to admit gang evidence when the gang enhancement is not charged.”]

A. Sentences

1. The (b) section adds two, three, or four years to non-serious and non-violent felonies. (Pen. Code, § 186.22, subd. (b)(1)(A).)

Proximity to school grounds (within 1,000 feet) is now an aggravating factor in deciding the sentence for the gang enhancement. (Pen. Code, § 186.22, subd. (b)(2).)

2. The (b) section adds five years to serious felonies (Pen. Code, § 1192.7, subd. (c)) such as crimes involving personal use of a firearm, residential burglary, criminal threats (Pen. Code, § 422) and drug sales. (Pen. Code, § 186.22, subd. (b)(1)(B).)

3. It adds ten years to violent felonies (Pen. Code, § 667.5, subd. (c)) such as mayhem, rape, child molestation, any crime with a GBI enhancement or a personal gun use enhancement, robbery, kidnapping, or attempted murder. (Pen. Code, § 186.22, subd. (b)(1)(C).)

4. Prop 21 created six new life crimes when the gang enhancement is found true.

The following crimes now carry life sentences with a minimum term of either 15 years or the sentence under the usual sentencing statutes (Pen. Code, §§ 1170 et seq), whichever is greater (Pen. Code, § 186.22, subd. (4)(A)):

o home invasion robbery (Pen. Code, § 213, subd. (a)(1)(A))

o carjacking (Pen. Code, § 215)

o drive-by shooting causing injuries to someone outside a car (Pen. Code, § 12022.55)

o felony shooting at an occupied dwelling or car (Pen. Code, § 246)

The following crimes now carry life sentences with a minimum term of either 7 years or the sentence under the usual sentencing statutes, whichever is greater (Pen. Code, § 186.22, subd. (4)(A)):

o extortion (Pen. Code, § 519)

o witness intimidation (Pen. Code, § 136.1)

Not all witness intimidation or extortion convictions qualify for the life term. In order for a witness intimidation conviction to qualify for a life sentence, the act must be accompanied by force or threat of force as defined by § 136.1, subd. (c)(1). People v. Anaya (2013) 221 Cal.App.4th 252, 271; People v. Lopez (2012) 208 Cal.App.4th 1049, 1065.) In order for an extortion conviction to qualify, the crime must have been committed by a felonious threat as defined under Pen. Code, § 519, not by simple force. (People v. Anaya (2013) 221 Cal.App.4th 252, 273.)

5. On crimes with indeterminate sentences (i.e., attempted premeditated murder (Pen. Code, § 664/187), kidnap for robbery (Pen. Code, § 136.1)), the enhancement raises the minimum eligible parole date (MEPD) to 15 years. (Pen. Code, § 186.22, subd. (b)(5) [formerly (b)(4) before Prop 21 renumbered the sections].)

Thus the MEPD on a conviction for attempted premeditated murder would go from 7 years (under Pen. Code, § 3046) to 15 years if the prosecution proves the gang enhancement.

NOTE: A court cannot add the extra two, three, four, five, or 10 years under Pen. Code, § 186.22, subd. (b)(1) to an indeterminate sentence in addition to raising the MEPD. (People v. Lopez (2005) 34 Cal.4th 1002 [10-year gang enhancement improperly imposed on a first-degree murder]; People v. Arauz (2012) 210 Cal.App.4th 1394, 1404-1405 [10-year enhancement improperly imposed on attempted premeditated murder counts]; People v. Harper (2003) 109 Cal.App.4th 520, 523-527; People v. Johnson (2003) 109 Cal.App.4th 1230; People v. Herrera (1999) 70 Cal.App.4th 1456, 1465; People v. Ortiz (1997) 57 Cal.App.4th 480, 485-486).

NOTE: Under the Three Strikes Law, a 15-year MEPD gets doubled for a prior strike. (People v. Jefferson (1999) 21 Cal.4th 86, 100-102.)

NOTE: What if the underlying crime (for example, unpremeditated attempted murder) carries a determinate sentence but an enhancement (say, discharge of a firearm causing great bodily injury [Pen. Code, § 12022.53, subd. (d)]) carries an indeterminate sentence? Can a defendant then get the extra term for the gang enhancement? Yes. (People v. Montes (2003) 31 Cal.4th 350; People v. Sok (2010) 181 Cal.App.4th 88.)

6. Probation: On a probation case, the enhancement sets a 180-day minimum jail term. (Pen. Code, § 186.22, subd. (c).)

Thus a graffiti case (Pen. Code, § 594) now carries a 6-month minimum jail sentence if the prosecution proves the gang enhancement.

7. The gang enhancement interacts with the various gun enhancements in strange and curious ways.

• The “old” personal use firearms enhancement (Pen. Code, § 12022.5): If a crime becomes a violent felony under Pen. Code, § 667.5, subd. (c)(8) only because the defendant personally used a firearm, the defendant can’t get both the 10-year gang enhancement for violent crimes and the 10-year gun enhancement under § 12022.5, subd. (a). People v. Martinez (2012) 208 Cal.App.4th 197, 199; People v. Rodriguez (2009) 47 Cal.4th 501, 508 [“Here, defendant became eligible for this 10-year [gang] punishment only because he ‘use[d] a firearm which use [was] charged and proved as provided in . . . Section 12022.5.” (§ 667.5, subd. (c)(8).)”

But if the underlying crime was already a violent crime—like an attempted voluntary manslaughter deemed “violent” because of a great bodily injury enhancement (Pen. Code, § 12022.7)—the defendant can receive both the 10-year gang enhancement (Pen. Code, § 186.22, subd. (b)(1)(C)) and the enhancement for up to ten years for personal use of a firearm under Pen. Code, § 12022.5, subd. (a). (People v. Vega (2013) 214 Cal.App.4th 1387, 1395.)

• The 10-20-life law (Pen. Code, § 12022.53, subd. (e)(1)):

Where the 186.22, subd. (b) gang enhancement is alleged and proven, the firearms enhancements under § 12022.53 apply not just to the defendant who used the gun but to all the principals as well.

The interplay between the 10-20-life law and the gang enhancement is, to say the least, complicated.

Section 12022.53, subd. (e)(2) specifically authorizes the imposition of both an enhancement for participation in a criminal street gang as well as a § 12022.53 firearms enhancement—but only if the defendant personally used the firearm.

For those defendants who didn’t personally use firearms, imposition of the § 12022.53, subd. (e) gang gun enhancement on a principal precludes the imposition of the extra determinate term for the § 186.22, subd. (b) gang enhancement—and the 15-year minimum eligible parole date as well. (Pen. Code, § 12022.53, subd. (e)(2); People v. Robinson (2012) 208 Cal.App.4th 232, 258; People v. Valenzuela (2011) 199 CalApp.4th 1214 [in attempted unpremeditated murder case, trial court improperly raised the MEPD to 15 years and imposed a 25-to-life firearms enhancement on a non-shooter; increased MEPD was stricken]; People v. Salas (2000) 89 Cal.App.4th 1275; People v. Gonzalez (2010) 180 Cal.App.4th 1420.)

So a life-term sentence for a non-shooter gang member under § 186.22 , subd. (b)(4)(B) precludes the imposition of a firearms enhancement under § 12022.53, subd. (e)(1). See People v. Brookfield (2009) 47 Cal.4th 583, 590 [co-conspirator defendant given 15 to life for shooting at an inhabited dwelling (Pen. Code, §§ 246 and 186.22, subd. (b)(4)(B), to which a 10-year term under § 12022.53, subd.(b) and (e)(1) was improperly added].

Apart from the exception for the gang enhancement for those who personally use firearms (§ 12022.53, subd. (e)(2)), imposition of a 12022.53 gun enhancement on anyone—shooter or non-shooter—precludes the imposition of any other enhancement, unless that specific enhancement by itself provides for a greater penalty or a longer term of imprisonment. (Pen. Code, § 12022.53, subd. (j).) This language applies to conduct enhancements, not to other sentencing provisions such as special circumstances. (People v. Shabazz (2006) 38 Cal.4th 55.)

Thus in a robbery case where enhancements were charged under § 12022.53, subd. (b) and (e) [principal in a gang case using a gun], §186.22, subd. (b) [gang crime], and § 12022, subd. (a)(1) [principal armed], a trial court erred in striking the 10-year gun use allegation under § 12022.53 and imposing sentences on the gang and principal-armed enhancements totaling 11 years, because neither of the latter two enhancements by itself would provide for a longer term of imprisonment than the 10 years for the gun use allegation. The trial court should have imposed the 10-year enhancement under § 12022.53 and stayed the gang enhancement under § 186.22, subd. (b), as well as the principal-armed enhancement). (People v. Sinclair (2008) 166 Cal.App.4th 848, 853-854.)

B. Striking the enhancement: A court can strike the extra punishment or deviate from the minimum jail sentence “in an unusual case where the interests of justice would best be served,” so long as the court makes a record. (Pen. Code, § 186.22, subd. (g).)

The court can also strike the enhancement in the interests of justice pursuant to Pen. Code, § 1385. (People v. Fuentes (2016) 1 Cal.5th 218, disapproving People v. Campos (2016) 196 Cal.App.4th 438, 450-454.)

C. The elements

1. The felony was committed for the benefit of, at the direction of or in association with a criminal street gang.

“for the benefit of”: “There is rarely direct evidence that a crime was committed for the benefit of a gang. . . . . ‘ . . . .We can discover mental state only from how people act and what they say.’ [Citation omitted].” (People v. Miranda (2011) 192 Cal.App.4th 398, 411-412.) Prosecutors generally prove this element through expert testimony and may ask the expert to answer a hypothetical question that closely tracks the evidence.

o People v. Vang (2011) 52 Cal.4th 1038, 1041 [“It is required, not prohibited, that hypothetical questions be based on the evidence. The questioner is not required to disguise the fact the questions are based on that evidence.”]

o See People v. Morales (2003) 112 Cal.App.4th 1176, 1197 [“[The expert] was asked to assume the critical facts of this case. He was then asked whether, in his opinion, such hypothetical crimes were committed for the benefit of, at the direction of, and/or in association with a criminal street gang. He testified that they were. . . . The crime would benefit the individual gang members with notoriety among the gang, and the gang with notoriety among rival gang members and the general public.”]

o See People v. Thomas (2005) 130 Cal.App.4th 1202, 1205-1206 [expert testified that crime of receiving stolen property [a truck] was committed for the benefit of the E.Y.C. gang in Riverside]

o See People v. Akins (1997) 56 Cal.App.4th 331, 336 [expert testified that the defendants committed robbery for the benefit of, at the direction of, or in association with a gang]

o See People v. Dominguez (1981) 121 Cal.App.3d 481, 494 fn. 13 [“ . . . a Nuestra Familia member acquainted with appellants, testified that gang members killing an enemy earned a ‘star,’ which represented respect and recognition within the Nuestra Familia organization [sic].”][4]

Crimes can benefit a gang by enhancing its reputation for viciousness. (See, e.g., People v. Livingston (2012) 53 Cal.4th 1145, 1172 [“A reasonable jury could conclude from all this evidence that defendant shot the security guards to enhance the Park Village Crips's reputation, to show that the gang rather than the security guards were in charge of the apartment complex, or to retaliate for the guards’ role in identifying his car in the earlier gang-related driveby shooting.”]; People v. Vazquez (2009) 178 CalApp.4th 347, 354 [expert testified that murder of a non-gang member benefited the gang because “violent crimes like murder elevate the status of the gang within gang culture and intimidate neighborhood residents who are, as a result, ‘fearful to come forward, assist law enforcement, testify in court, or even report crimes that they’re victims of for fear that they may be the gang’s next victim or at least retaliated on by that gang . . . .’”].)

“in association with”: “A crime is committed in association with a gang if the “defendants relied on their common gang membership and the apparatus of the gang in committing” the charged felonies.” People v. García (2016) 244 Cal.App.4th 1344, 1367

The fact that a defendant committed the charged crimes together with gang members can suffice to establish this element:

o People v. Martinez (2008) 158 Cal.App.4th 1324, 1332, citing People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [“Committing a crime in concert with known gang members can be substantial evidence that the crime was committed in ‘association’ with a gang.”]

But expert testimony alone is insufficient to find an offense gang-related. (People v. Ochoa (2009) 179 Cal.App.4th 650, 657; People v. Ferraez (2003) 112 Cal.App.4th 925, 931)

2. …with the specific intent to promote, further, and assist in criminal conduct:

The leading case regarding the intent requirement is People v. Albillar (2011) 51 Cal.4th 47.

The intent requirement can be satisfied in two ways. First, the prosecution can prove that the defendant committed the crime in order to make it easier for the gang as a whole to commit other crimes in the future.

o See, e.g., People v. Margarejo (2008) 162 Cal.App.4th 102, 110 [defendant flashed gang signs while evading police; “The message he broadcast—the only message he broadcast—was the gang message. The logical purpose was to accomplish the foreseeable effect: to proclaim the gang’s dominance in the teeth of a determined police effort to enforce the law. . . . The jury could reasonably conclude Margarejo had ‘the specific intent to . . . assist [other] criminal conduct by gang members . . . .’”]

o See, e.g., People v. Ferraez (2003) 112 Cal.App.4th 925, 928 [“[The gang expert] testified that gang members are involved in drug sales because it involves less risk than other crimes, e.g., robbery, and the profits may be used to buy guns or more drugs in order to increase the volume of their business. He further explained that possessing drugs for sale enhances a gang's reputation.”]

o See, e.g., People v. Gardeley (1996) 14 Cal.4th 605, 613, 619, disapproved on other grounds in People v. Sanchez (2016) 63 Cal.4th 665, 686 [expert properly allowed to testify that an assault in concert by Family Crips committed in the area in which Family Crips sold drugs serves to intimidate the residents, thereby securing the gang’s drug-dealing stronghold]

Second, the prosecution can show that the defendant was trying to help a particular gang member commit a particular crime: “We . . . find that the scienter requirement in section 186.22(b)(1)—i.e., ‘the specific intent to promote, further, or assist in any criminal conduct by gang members’—is unambiguous and applies to any criminal conduct, without a further requirement that the conduct be ‘apart from’ the criminal conduct underlying the offense of the conviction sought to be enhanced. . . There is no further requirement that the defendant act with the specific intent to promote, further, or assist a gang; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members.” (People v. Albillar (2011) 51 Cal.4th 47, 66-67; see also People v. Morales (2003) 112 Cal.App.4th 1176, 1198.)

• See, e.g., People v. Weddington (2016) 246 Cal.App.4th 468, 484-485 [“The fact that these three gang members came together to commit these crimes [completed and attempted knock-knock burglaries in the San Fernando Valley] also satisfied the second prong of section 186.22, subdivision (b)(1), that the ‘defendant commit the gang-related felony “with the specific intent to promote, further, or assist in any criminal conduct by gang members.”’” [Citing Albillar.]]

In Albillar, the California Supreme Court specifically rejected the interpretation of the intent requirement set forth in two federal appellate opinions. In Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 and Briceno v. Scribner (9th Cir. 2009) 55 F.3d 109, both 2-1 decisions, the Ninth Circuit Court of Appeal interpreted the (b) section as requiring (1) that the crime benefits the gang, or was committed at the direction of or in association with gang members; and (2) that the defendant had the specific intent to promote, further, or assist in other criminal conduct by the defendant’s gang apart from the charged offense. (See also People v. Romero (2006) 140 Cal.App.4th 15 and People v. Vazquez (2009) 178 Cal.App.4th 347, 353-354, specifically holding that Garcia incorrectly analyzes California law.)

The gang enhancement applies even when a defendant has another intent besides promoting the gang when he committed the crime. (See, e.g., People v. Ferraez (2003) 112 Cal.App.4th 925 [defendant told officer that he possessed drugs in order to get money for a car; expert testified that the crime promoted the gang][5].)

The prosecution is not required to prove which specific crime the defendant was seeking to promote. (In re Cesar V. (2011) 192 Cal.App.4th 989, 1000; People v. Albillar (2010) 51 Cal.4th 47, 66.)

The gang enhancement can apply to a provocative act murder in which the defendant’s fellow gang member was killed. (People v. Mejia (2012) 211 Cal.App.4th 586, 613-614.)

D. Cases in which evidence did not support a true finding as to the gang enhancement.

• People v. Franklin (2016) 248 Cal.App.4th 938, 947-952 [defendant was convicted of false imprisonment and criminal threats with gang allegations in a case involving crimes against the woman with whom he was in a relationship; insufficient evidence supported the gang allegations, even though he committed the false imprisonment with the help of members of different gangs]

• In re Frank S. (2006) 141 Cal.App.4th 1192, 1199 [gang enhancement improperly found where no testimony suggested that minor with a concealed dirk or dagger was in gang territory, in the company of gang members, or had any reason to expect to use the knife in a gang-related offense; minor did, however, have a gang-related bandana]

• People v. Ramon (2009) 175 Cal.App.4th 843, 846 [insufficient evidence supported gang enhancement where defendant received a stolen vehicle and possessed a firearm, even though the Riperpetrators were gang members and the gang was committed in the gang’s territory. Expert did not testify that the gang’s primary activities included possessing stolen vehicles.]

• People v. Ochoa (2009) 179 Cal.App.4th 650, 62 [gang member committed carjacking by himself, and there was no evidence of territorial issue, gang paraphernalia, gang membership of victims]

• In re Daniel C. (2011) 195 Cal.App.4th 1350 [minor stole a bottle of liquor and hit the store employee with the broken bottle in the spur of the moment; evidence was insufficient to prove gang enhancement, even though minor had gang tattoos, had committed two robberies in the company of others, was previously stopped in the company of gang members, and entered the store in the company of a gang member and a gang affiliate, both of whom were wearing gang colors]

Many subsequent cases (see, e.g., People v. Miranda (2001) 192 Cal.App.4th 398, 413) distinguish the following three:

E. Bifurcation

• Courts have bifurcated the gang enhancement from the underlying crimes. (See, e.g., People v. Akins (1997) 56 Cal.App.4th 331, 336; People v. Olguin (1994) 31 Cal.App.4th 1355, 1367.)

“[T]he trial court’s broad discretion to control the conduct of proceedings furnishes the trial court with ample authority to bifurcate an enhancement. [Citations.] The party seeking severance or bifurcation has the burden to ‘clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.’ [Citations.]” (People v. Ramirez (2009) 172 Cal.App.4th 1018, 1026.)

• But nothing in § 186.22 or any other section of the Penal Code requires bifurcation, especially where gang evidence is intertwined with the motive and the circumstances surrounding the charged offense.

o People v. Franklin (2016) 248 Cal.App.4th 938, 953 [“We find no abuse of discretion in the trial court’s denial of the defense bifurcation motion here. . . . The gang evidence here was thus relevant to the prosecution’s theory of motive. . . . [O]ur conclusion that substantial evidence does not support true findings on the gang allegations [does not] mean that such evidence was inadmissible to prove the substantive charges.”]

o People v. Garcia (2016) 244 Cal.App.4th 1349, 1358 [“Here, evidence of defendants’ robbery spree was relevant and probative not only with respect to the gang enhancement but also with respect to their motive in committing the robberies and, in particular, establishing Garcia's role and motive in assisting Guzman and Mendoza. Thus, much of the evidence related to the gang enhancement would have been admissible in a separate trial of the robberies. Moreover, the gang evidence was not any more inflammatory than the victims' testimony about the robberies. Under these circumstances, the trial court did not abuse its discretion in denying the motion to bifurcate.”]

o People v. Ramirez (2009) 172 Cal.App.4th 1018, 1026-1019 [upholding denial of bifurcation in drug sales case; rejecting the argument that gang evidence is impermissible propensity evidence]

o People v. Hernandez (2004) 33 Cal.4th 1040, 1048 [“The court here did not deny bifurcation because it believed it lacked authority to bifurcate, but as an exercise of its discretion. We see no abuse of that discretion. . . . A gang enhancement is different than the prior conviction at issue in [People v. Calderon (1994) 9 Cal.4th 69]. A prior conviction allegation relates to the defendant’s status and may have no connection to the charged offense; by contrast, the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense. So less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation.” [Emphasis in original.]]

o People v. Funes (1994) 23 Cal.App.4th 1506, 1516-1519 [bifurcation motion properly denied where, in the words of the trial court, “[g]ang affiliation and activity [were] woven into the factual fabric throughout this case.”]

o People v. Martin (1994) 23 Cal.App.4th 76, 81 [bifurcation motion properly denied; § 186.22, unlike enhancements for prior convictions which are commonly bifurcated, involves the defendant’s state of mind in the commission of the charged offenses; the gang enhancement thus closely resembles other enhancements such as § 12022.4 [furnishing a firearm to another for the purpose of aiding or abetting a felony] which are not bifurcated]

F. Section 654 issues/consecutive sentencing

A court can impose consecutive terms on the enhancement for gang-related offenses committed on separate victims.

o People v. Akins (1997) 56 Cal.App.4th 331, 337-341 [defendant, a member of the 1200 Blocc Crips in Riverside, robbed two people at two different places within an hour]

A court can’t sentence consecutively for a felony with a gang enhancement as well as an active gang participation offense (§ 186.22, subd. (a)) stemming from the same set of facts; one sentence had to be stayed under § 654.

o People v. Hunt (2011) 196 Cal.App.4th 811 [defendant, a member of the 1200 Blocc Crips in Riverside, robbed two people at two different places within an hour]

o People v. Louie (2012) 203 Cal.App.4th 383

G. § 186.22, subd. (b) at prelims

The gang enhancement must be proven at a preliminary hearing.

o Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 846

H. The (b) section and the “Three Strikes” law

In People v. Briceno (2004) 34 Cal.4th 451, the Supreme Court held that felonies with enhancements under Pen. Code, § 186.22, subd. (b) qualify as serious felonies within the meaning of Penal Code, § 1192.7, thanks to Prop 21. (See also People v. Bautista (2005) 125 Cal.App.4th 646, 655-657 [a negligent discharge (Pen. Code, § 246.3) with a gang enhancement counts as a serious felony to which a five-year enhancement for a prior serious felony conviction can be added pursuant to Pen. Code, § 667, subd. (a)].)

A court, however, can’t use the gang enhancement to elevate an “ordinary” felony to a serious felony (Pen. Code, § 1192.7, subd. (c)(28)), and then tack on both a five-year enhancement for a prior serious felony under Pen. Code, § 667, subd. (a) and another five years pursuant to § 186.22, subd. (b)(1)(B); only the 667(a) enhancement can be imposed.

o People v. Bautista (2005) 125 Cal.App.4th 646, 657

A gang enhancement sentence is not doubled for a prior strike. (People v. Sok (2010) 181 Cal.App.4th 88].)

I. Instructions

• CALCRIM series 1400 covers the STEP Act crime and allegation and the gang aspects of Pen. Code, § 12022.53:

o CALCRIM No. 1400 (Active Participation in Criminal Street Gang)

o CALCRIM No. 1401 (Felony or Misdemeanor Committed for Benefit of Criminal Street Gang)

o CALCRIM No. 1402 (Gang-related Firearm Enhancement)

o CALCRIM No. 1403 (Limited Purpose of Evidence of Gang Activity)

• The instructions for the crime of active participation in a gang (§ 186.22, subd. (a)) don’t apply to the gang enhancement (§ 186.22, subd. (b)).

o People v. Nuñez and Satele (2013) 57 Cal.4th 1, 36-39

• The trial court must instruct on the “primary activities” element.

o People v. Sengpadychith (2001) 26 Cal.4th 316, 324-329 [where the STEP Act imposes an additional term (as opposed to changing the minimum eligible parole date), failure to instruct as to the “primary activities” element is federal constitutional error that requires reversal unless it can be shown beyond a reasonable doubt that the error didn’t contribute to the verdict; where the STEP Act merely changes the parole date, reversal is required where it is “reasonably probable” that the defendant would have gotten a more favorable result without the error]

• The court does not need to give a unanimity instruction as to the predicate offenses.

o People v. Funes (1994) 23 Cal.App.4th 1506, 1525-1529 [prosecution introduced evidence of at least 5 separate incidents which could have qualified as predicate offenses]

o People v. Bragg (2008) 161 Cal.App.4th 1385, 1402

• The trial court has no sua sponte duty to give a limiting instruction as to gang evidence.

o People v. Hernandez (2004) 33 Cal.4th 1040, 1051.

• The gang enhancement instructions (and the instructions for the (a) section and the gang special circumstance, for that matter) don’t conflict with the motive instruction (CALCRIM No. 370: “The People are not required to prove that defendant had a motive. . . .”).

o People v. Fuentes (2009) 171 Cal.App.4th 1133

H. Miscellany

Crimes resulting in convictions with gang enhancements aren’t automatically crimes involving moral turpitude (CIMTs) for federal immigration purposes. (Hernandez-Gonzalez v. Holder (9th Cir. 2015) 778 F.3d 793.)

V. THE (D) SECTION: MISDEMEANORS CHARGED AS “WOBBLERS”

Prop 21 also created a new sentencing scheme which lets the prosecution charge gang-related misdemeanors as felonies.

Subdivision (d) reads:

“Any person who is convicted of a public offense punishable as a felony or a misdemeanor, which is committed for the benefit of, at the direction of or in association with, any criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison for one, two, or three years, provided that any person sentenced to imprisonment in the county jail shall be imprisoned for a period not to exceed one year, but not less than 180 days, and shall not be eligible for release upon completion of sentence, parole, or any other basis, until he or she has served 180 days. If the court grants probation or suspends the execution of sentence imposed upon the defendant, it shall require as a condition thereof that the defendant serve 180 days in county jail.”

Did subdivision (d) create a new substantive crime or just an enhancement? Neither—it created an alternate penalty provision. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 899.)[6]

Subdivision (d) applies not just to wobblers, but to any gang-related misdemeanor. (Robert L. v. Superior Court (2003) 30 Cal.4th 894.)

Once a misdemeanor has been elevated to a felony under the (d) section, a court can’t then impose an enhancement under the (b) section. (People v. Arroyas (2002) 96 Cal.App.4th 1439 [defendant was charged with vandalism causing damage less than $400; the complaint charged defendant with a felony due to subdivision (d); he properly pleaded guilty to a felony by admitting the gang allegation under subdivision (b)(1), but was not subject to the enhanced prison terms specified in subdivision (b)(1)].)

Nor can the prosecution tack the (d) section onto a misdemeanor charge of contempt for violating a gang injunction (Pen. Code, § 166, subd (a)) stemming from the same conduct and thereby bootstrap the misdemeanor contempt into a felony. (Lopez v. Superior Court (2008) 160 Cal.App.4th 824.)

The (d) section applies to juvenile cases. (In re Damien V. (2008) 163 Cal.App.4th 16.)

A misdemeanor elevated to a felony under the (d) section is not a strike or a serious felony within the meaning of Pen. Code, § 1192.7, subd. (c)(28). (People v. Ulloa (2009) 175 Cal.App.4th 405.) But it can be doubled if the defendant has a prior strike. (People v. Rocco (2009) 209 Cal.App.4th 1571.)

VI. RELATED STATUTES: The STEPchildren

Several other statutes adopt the definition of “criminal street gang” found in Pen. Code, § 186.22:

• The gang gun enhancement (Pen Code, § 12021.5, subds. (a) and (b)):

In any case in which the 186.22, subd. (a) substantive crime or the 186.22, subd. (b) enhancement is alleged and proven, this provision adds one, two, or three years if the defendant is carrying a loaded or unloaded firearm on his or her person or in a vehicle. If the defendant is also carrying a detachable magazine or belt-feeder, the sentence is two, three, or four years.

• Gang murder special circumstance (Pen. Code, § 190.2, subd. (a)(22)) [added by Prop 21]:

o Intentional murder by an active participant in a criminal street gang to further the activities of a street gang is now punishable by death or life without parole.

• Direct filing on juvenile gang members (Welf. & Inst. Code, §707, subd. (d)(2)(C)(ii) and (d)(3)(C)) [added by Prop 21; upheld by Manduley v. Superior Court (2002) 27 Cal.4th 537]:

The prosecution can file on a minor 14 or older when the minor has allegedly committed a 707(b) crime with the intent to promote or benefit a gang. The prosecution can also file directly on a minor 16 or older who committed any felony for the sake of a gang who has previously been made a ward of the court for a felony committed when he or she was 14 or older.

• Active gang member with a concealed firearm on his or her person or in a car [a felony] (Pen. Code, § 25400, subd. (c)(3), formerly § 12025, subd. (b)(3)).

o A felony violation of former Pen. Code, § 12025, subd. (b)(3) is a serious felony and a “strike” within the meaning of the Three Strikes Law. (People v. Chaides 229 Cal.App.4th 1157, 1165.)

• Active gang member with a loaded gun on his or her person or in a car [a felony] (Pen. Code, § 25850, subd. (c)(3), formerly § 12031, subd. (a)(2)(C)):

o The Supreme Court analyzed the complicated interplay between the gangster-with-a-gun statute and the active-participant-in-a-gang statute (§ 186.22, subd. (a)) in People v. Robles (2000) 23 Cal.4th 1106, 1115: “Thus, carrying a loaded firearm in public becomes a felony under section 12031(a)(2)(C) when a defendant satisfies the elements of the offense described in section 186.22(a). Those elements are ‘actively participat[ing] in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity’ and ‘willfully promot[ing], further[ing], or assist[ing] in any felonious criminal conduct by members of that gang.’”

o People v. Lozano (2001) 86 Cal.App.4th 711, 717, which held that a court cannot impose a consecutive sentence for the gang enhancement on top of gangster-with-a-gun, was depublished.

o Being an active gang member (Pen. Code, § 186.22, subd. (a)) is a lesser included crime of gangster-with-a-gun (former Pen. Code, § 12031, subd. (a)(2)(C)); a defendant can’t be punished for both. (People v. Flores (2005) 129 Cal.App.4th 174, 184.)

o A conviction for gangster-with-a-gun that predates the 2000 Robles decision is not a serious felony for the purposes of the Three Strikes Law or other enhancements. (People v. Watts (2005) 131 Cal.App.4th 589.)[7]

• Gang recruiting (Pen. Code, § 186.26) [added by Prop 21]:

o if no threats of violence: 16, 2, or 3 years (Pen. Code, § 186.26, subd. (a))

o if defendant physically threatens the recruit twice during a 30-day period: 2, 3, or 4 years (Pen. Code, § 186.26, subd. (b))

o if defendant used physical violence: 3, 4, or 5 years (Pen. Code, § 186.26, subd. (c))

o if the recruit is a minor: an extra 3 year enhancement (Pen. Code, § 186.26, subd. (d))

• Gang registration (Pen. Code, §§ 186.30, subd. (a), 186.32, subd. (a)) [added by Prop 21]:

o Anyone, juvenile or adult, convicted of a gang-related crime (Pen. Code, § 186.22, subd. (a), any crime in which the § 186.22, subd. (b) enhancement was found true, or any crime that the judge finds is gang-related has to register with the police. Failure to register is a misdemeanor. (Pen. Code, § 186.33, subd. (a).) Failure to register is a wobbler if the defendant is convicted of a gang-related crime later. (Pen. Code, § 186.33, subd. (b).)

o Pen. Code, § 186.32, subd. (a)(1)(C) [as to juveniles] and § 186.32, subd. (a)(2)(C) [as to adults] requires that the registrants give the police “any information that may be required by the law enforcement agency.”

o Suppose a gang member commits a non-gang-related crime. Can the court make him register as a gang member? No. (People v. Martinez (2004) 116 Cal.App.4th 753.)

• A broadened definition of conspiracy which now includes anyone who actively participates in a street gang with knowledge of its criminal activities and who furthers, assists or benefits from a felony committed by a member. (Pen. Code, § 182.5.)

• Providing a gun to someone with knowledge that that person will commit a felony [a wobbler]. (Pen. Code, § 186.28.)

• A hearsay exception for recorded statements under penalty of perjury by a witness in a gang case who dies of unnatural causes (Evid. Code, §§ 1231 et seq.). [NOTE: This hearsay exception probably did not survive Crawford v. Washington (2004) 541 U.S. 36.]

• Gang extortion and witness intimidation are now violent felonies. (Pen. Code, § 667.5, subd. (c)(19), (20) [added by Prop 21].)

• Gang crimes join murders and drug crimes on the list of crimes for which the prosecution can apply for a wiretap (Pen. Code, § 629.52, subd. (a)(3) [added by Prop 21].)

• Injunctions and abatements against gang member hangouts and firearms as public nuisances. (Pen. Code, § 186.22a.)

• Probation: Conditions of probation involving gangs can avoid vagueness challenges by incorporating the STEP Act’s definition of a criminal street gang. (People v. Lopez (1998) 66 Cal.App.4th 615, 634 [“Because section 186.22 has withstood attack on the same constitutional grounds advanced here by Lopez against [Sacramento County] condition No. 15, we believe it appropriate to order modification of the probation condition in issue so as to incorporate into it the definitions contained in subdivisions (e) and (f) of the statute. By so amending the condition, any due process concerns about it will be eliminated and Lopez will be unambiguously notified of the standard of conduct required of him.”]

-----------------------

[1] The three-year period is triggered by the date of the crime, not the date of any resulting conviction. Many certified court documents submitted as proof of the predicates do not establish this element because they don’t specify the date of the offense.

[2] For the purposes of this list, “assault with a deadly weapon” includes assault with a firearm (Pen. Code, § 245, subd. (a)(2)). (People v. Maldonado (2005) 134 Cal.App.4th 627, 632-634.)

[3] A “rap sheet,” certified by the City Attorney or District Attorney’s Office, can constitute proof of a prior conviction. (See People v. Dunlap (1993) 18 Cal.App.4th 1468.)

[4] Note that Dominguez predates the gang enhancement by several years. I cite it to illustrate how the commission of violent crimes might help a gang member rise through the ranks.

[5] Note that in Ferraez, the Court of Appeal didn’t reach the issue of multiple intents because the defendant testified that he never made the statement about buying a car to the arresting officer. The multiple-intent issue just appears in the facts.

[6] The Court of Appeal spelled out the messy history of the (d) section in detail in People v. Arroyas (2002) 96 Cal.App.4th 1439, 1444-1448. The language for this subsection came from the originally enacted version of the STEP Act in the late 1980s. The original language targeted both gang-related felonies and gang-related misdemeanors, but the language applying to misdemeanors was later axed by the Legislature. A decade later, the drafters of Prop 21 copied the original language and pasted it into the middle of § 186.22 with little revision. With this new subdivision (d), the voters “intended to accomplish what the Legislature was unwilling to do, i.e., restore section 186.22 to its former glory.” (Robert L. v. Superior Court (2001) 87 Cal.App.4th 912, 919, aff’d in Robert L. v. Superior Court (2003) 30 Cal.4th 894.) So if the language seems out of context, that’s because it is.

[7] The Watts court didn’t discuss the possibility that a conviction for gangster-with-a-gun which occurred after Robles, which requires that the prosecution prove up all the elements of 186.22, subd. (a) when the prosecution files gangster-with-a-gun charges, might constitute a serious felony and therefore a strike.

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download