Gang Crime - PC 186.22(a) (for gang enhancement see 852)
Category > Gang Crime - PC 186.22(a) (for gang enhancement see 852)
Updated 2/1/2024AB 333 applies retroactively and required reversal of the gang enhancement and substantive gang crime conviction.AB 333, which increases the evidentiary burden necessary to prove a Penal Code section 186.22(b) gang enhancement applies retroactively to cases not final on appeal at the time of its effective date. The enhancement (and conviction for the substantive gang offense) were reversed where there was no evidence the predicate offenses benefitted the gang.id: 27932
Updated 1/29/2024After the court granted defendant’s section 1172.6 petition, he was entitled to retroactive application of AB333, and his gang conviction was reversed.Once defendant’s Penal Code section 1172.6 petition was granted and his murder conviction was vacated, the judgment was no longer final, he was entitled to the ameliorative benefits of AB333, and his conviction for gang participation under Penal Code section 186.22(a) was reversed.id: 28097
The substantive gang offense described in section 186.22, subd.(a) cannot be committed by a gang member attempting to commit a robbery by himself.The evidence did not support defendant’s conviction for active participation in a criminal street gang (Penal Code section 186.22, subd.(a)) where defendant, a criminal street gang member, acted alone in committing the attempted robbery. The offense requires that he promote, further or assist, felonious criminal conduct by members of his gang. id: 21802
Evidence did not support defendant’s gang participation convictions as he carried a gun but did not assist other gang members commit a felony.Evidence was insufficient to support defendant’s two convictions for active participation in a street gang under Penal Code section 186.22, subd.(a) because it did not show that he promoted felonious conduct by two gang members. That two other gang members encouraged him to carry a gun did not show that he aided and abetted them as there was no evidence that either of the other two committed a felony. In the other incident, defendant’s gun possession was committed in the presence of one other person, who was not a gang member, and so again he did not assist two gang members as required by the statute. id: 23801
It was improper to add a gang enhancement to each substantive gang participation crime. The prosecutor erred by adding a Penal Code section 186.22, subd.(b) gang enhancement to each charge of gang participation in violation of section 186.22, subd.(a). The enhancements were stricken.id: 24243
Defendant was improperly convicted of the substantive gang offense where he was not acting with a member of his own gang. The evidence was insufficient to support defendant’s conviction for street terrorism under Penal Code section 186.22, subd.(a), because the gang member defendant was acting with was not a member of his own gang. id: 24027
The conviction for the substantive gang offense was reversed where the evidence showed defendant acted alone in committing the crime.The evidence was insufficient to support defendant’s conviction for active-gang participation under Penal Code section 186.22, subd.(a) because it showed he acted alone, not in concert with other gang members in killing the victim. While Giovanni was nearby at the time there was no evidence that he was a gang member or that he participated in a fight.id: 24077
Evidence did not support the gang participation conviction for a defendant who acted alone but it did support the gang enhancement.The evidence did not support defendant’s conviction for active gang participation under Penal Code section 186.22, subd.(a) because he acted alone in possessing the weapon. However, the gang enhancement under section 186.22, subd.(d) applies even where the defendant acts alone, and the evidence supported the imposition of the enhancement. id: 23465
A gang member does not violate section 186.22, subd.(a) if he commits a felony while acting alone.Penal Code section 186.22, subd.(a), the substantive gang offense, reflects the Legislature’s intent to punish active gang members who commit crimes along with other gang members. It did not apply to the defendant here, who acted alone in committing the attempted robbery.id: 23013
The evidence did not support the conviction for the substantive gang offense where the defendant possessed personal use quantities of drugs while alone on his porch. The evidence was insufficient to support defendant's conviction for the substantive offense of street terrorism under Penal Code section 186.22, subd.(a). The evidence showed that defendant, a gang member acted alone in perpetrating a felony - possession of personal use quantities of heroin and methamphetamine - that was not gang related. The reach of the gang statute was not so broad as to criminalize such conduct.id: 22933
The trial court erred by punishing defendants for the substantive street gang count after imposing the terms for both arson and witness dissuasion.Defendants were convicted of, and punished for, setting fire to the apartment in the arson count, and they were convicted of, and punished for, the verbal threat in dissuading the witness. They could not be punished again for either action so the trial court erred by imposing an additional sentence for the Penal Code section 186.22, subd.(a) street terrorism count. id: 22581
Penal Code section 654 prohibited punishment for defendant’s gang crimes in addition to his punishment for assault with a firearm and possession of a firearm by a felon. In each of two separate incidents, defendant, a gang member and convicted felon, shot a victim. He was convicted of and punished for assault with a firearm, possession of a firearm by a felon, and actively participating in a street gang (based on the shooting or firearm possession). Punishing defendant for assault with a firearm and for possession of a firearm by a felon precluded additional punishment for actively participating in a gang.id: 22728
While defendant could be sentenced for both the substantive gang offense and the section 12022.53, subd.(e) enhancement, section 654 required a stay where the intent for the gang offense was the same as that for the robbery.Defendant argued that the trial court erred by imposing the sentence for the Penal Code section 12022.53, subd.(e) gang enhancement and then a consecutive sentence for the section 186.22, subd.(a) substantive gang offense. While a defendant can be sentenced for both the substantive gang offense and the section 12022.53, subd.(e) enhancement, the sentencing court should have stayed the former under section 654 because it was based on the same intent he had when he committed the robbery - to benefit his gang.id: 22244
The trial court erred in failing to stay the sentence on the street terrorism charge because defendant had the same objective in committing the underlying firearm offense.Penal Code section 654 barred punishment for both the firearm offense and the substantive street terrorism offense (Penal Code section 186.22, subd.(a)) where the jury necessarily relied on one of the underlying firearm offenses to establish the requisite felonious conduct on the street terrorism charge.id: 21869
A misdemeanor may become a felony for sentencing purposes when committed in violation of section 186.22, subd.(d) but section 186.22, subd.(b)(i) does not apply to such misdemeanors.Defendant argued the trial court prejudicially erred in overruling the demurrer because the crime of vandalism with less than $400 in damage is not a felony. He claimed a misdemeanor, such as vandalism with less than $5,000 in damage, cannot be charged as a felony simply because it was alleged under section 186.22, subd.(d). He argued a person must be charged and convicted of a substantive crime prior to applying the gang enhancement. However, the crime of vandalism with less than $400 in damage is a public offense, regardless of the effect of section 186.22, subd.(d). When a misdemeanor is committed in violation of section 186.22, subd.(d) it becomes a felony, at the judge's discretion, for sentencing purposes. Nevertheless, the Legislature did not intend that section 186.22, subd.(b)(1) would apply to a misdemeanor offense made a felony pursuant to subdivision (d).id: 16739
Updated 3/7/2024The mental health diversion law does not apply to juveniles in delinquency proceedings.The minor entered into a plea agreement where she admitted a torture allegation and was later committed to the Division of Juvenile Justice. She argued the case should be remanded so that the juvenile court can determine whether she qualified for mental health diversion under Penal Code section 1001.35 and 1001.36. However, the mental health diversion law does not apply to juveniles in delinquency proceedings. id: 26223
Updated 2/23/2024Evidence supported defendant’s active gang participation despite his lack of a history of documented gang affiliation.Defendant argued there was insufficient evidence to show he was an “active participant” in a criminal street gang for purposes of Penal Code section 186.22, subds. (a) and (b). Instead, he claimed that he simply associated with gang members, and the statute doesn’t penalize a person’s fantasies about being in the criminal underworld. However, the evidence showed defendant’s involvement went beyond fantasy and the factfinder could reasonably conclude that he committed the robbery with two other gang members for the benefit of the gang.id: 26931
Updated 2/22/2024The lack of evidence regarding the nature of the rival gang members’ convictions constituted a failure of proof on an element of the crime of gang conspiracy.Evidence was insufficient to support the defendant’s convictions for gang conspiracy under Penal Code section 182.5. The charge arose out of a shooting where two men shot an NC gang member while he stood near a memorial set up for his father who had been murdered the day before. Brim gang members later pled guilty to that shooting. However, no evidence was presented at this trial showing what crime those gang members pled guilty to or whether that crime was a felony. Without evidence of the nature of the crimes committed by the Brim gang members the jury was left to speculate.id: 26951
Updated 2/22/2024Evidence supported defendant’s conviction for recruiting a gang member where he befriended a minor who began dressing like a gang member, surrounded himself with gang imagery and furnished defendant with a gun that was used in a robbery. Defendant argued his conviction for recruiting a minor into a street gang (Penal Code section 186.26) was not supported by the evidence, and while he was friendly with Sam T., he didn’t solicit him to participate in gang activity. While Sam T. was not a gang member when he moved to California, he began dressing like a Norteno, surrounding himself with Norteno imagery and spending his time with defendant, a Norteno gang member. He also furnished a gun to defendant that was used in a robbery. Evidence supported the conviction.id: 27037
Updated 2/1/2024AB 333 is retroactive but did not require reversal of the conviction on the substantive count where the gang evidence did not strongly impact that count.AB 333’s amendments to Penal Code section 186.22 apply retroactively to cases not final on appeal. The gang enhancement in defendant’s case was reversed. However, the failure to bifurcate the gang enhancement from the underlying charge of shooting at an occupied vehicle did not require a reversal of that conviction because the gang evidence did not impact that charge.id: 27978
A conviction for street terrorism survives even after a felony based on the same conduct was reduced to a misdemeanor under Prop 47.A conviction for actively participating in street gang activity under Penal Code section 186.22, subd. (a) survives after a felony conviction that is based upon the same conduct has been reduced to a misdemeanor under Prop 47. Unlike the gang enhancement under section 186.22, subd,(b), the street terrorism conviction does not require a felony conviction, it requires that conduct that resulted in the conviction was felonious at the time it was committed.id: 24968
A person may be subject to a gang injunction regardless of his activities if the gang commits multiple nuisance activities. Defendant argued an individual cannot be subject to a gang injunction unless he personally commits multiple nuisance activities. However, a person can be subject to a injunction if he is an active member of a gang whose members commit nuisance. id: 25136
Evidence showed the existence of a criminal street gang where crimes were committed by Nortenos at the direction of the Nuestra Familia prison gang.Defendant argued the evidence was insufficient to show the existence of a criminal street gang for purposes of the gang enhancement and the substantive offense. However, the Nuestra Familia prison gang is the parent organization for all Nortenos. Evidence presented showed the structure of the organizations, the connection between the two and the dictate that the Nortenos start committing certain crimes in Redding. Defendant committed the crimes in Redding with high ranking Nortenos and the rules don’t allow members to commit these crimes with nonmembers. The evidence established the existence of a criminal street gang.id: 24499
Gang expert could rely on police reports and arrests to prove Highland Street was a gang for purposes of the Penal Code section 186.22 substantive crime and enhancement.Defendant argued the prosecution failed not prove for purposes of the substantive gang offense and the gang enhancement, that “Highland Street’s” primary activity was the commission of felonies. He claimed the gang expert’s testimony was based solely on inadmissible hearsay. However, the expert’s reliance on police reports and STEP notices was not improper. He had worked as a gang officer for 15 years and had been assigned to the Highland Street area. He knew the gang, its members, and who committed crimes. He not only reviewed police reports, he read all reports to decide whether gang changes should be filed. Those were the type of documents on which experts may rely. He listed five drug arrests and there was no requirement that the prosecution introduce proof of convictions.id: 21962
Defendant’s carjacking, committed with a non-gang member promoted the gang for purposes of the section 186.22, subd.(a) offense. Defendant argued that because his cohort was not a gang member, the prosecution could not prove the carjacking was done to promote the gang for purposes of the Penal Code section 186.22, subd.(a) street gang crime. However, defendant’s actions, committed without another Highland Street member present, promoted or furthered the gang’s felony conduct.id: 21963
Possession of a firearm by a felon qualifies as felonious criminal conduct for purposes of the substantive gang participation offense.Unlawfully carrying a concealed firearm and unlawfully carrying a loaded firearm in public are ordinarily misdemeanors but become felonies when committed by an active participant in a street gang under Penal Code section 186.22, subd.(a). Possession of a firearm by a felon constitutes “felonious criminal conduct” under that provision so as to elevate to felonies the misdemeanors if carrying a concealed firearm and carrying the loaded firearm in public.id: 23498
Weapon possession could be used to establish a violation of the gang participation if it was independently punishable under another provision.When possession of a firearm is independently punishable as a felony under some other statutory provision, such as convicted felon in possession of a firearm here, that possession may be used as the felonious criminal conduct necessary to establish a violation of Penal Code section 186.22, subd.(a) for active participation in a gang. Having established probable cause to believe defendant violated that provision, the otherwise misdemeanor offenses of carrying a concealed firearm in public (section 12025, subd.(a)) and possessing a loaded firearm in public (section 12031, subd.(a)) could also be charged as felonies.id: 22914
Section 654 did not prohibit separate punishment for the crime of street gang activity and the underlying felonies used to prove the “felonious conduct” element of that offense.Defendant argued that Penal Code section 654 barred separate punishment for the crime of criminal street gang activity and the underlying felonies used to prove the “felonious conduct” element of that offense because the underlying felonies for which defendant was already separately punished - assault with a deadly weapon and vandalism - were the acts that transformed their gang membership into the substantive gang activity offense. However, two distinct criminal acts were involved as participation in a street gang is a separate offense. Moreover, one crime was not merely the means of perpetrating the other and while the attack of the victim and vandalism were part of the crime of criminal street gang activity, the crimes were not coextensive. id: 22455
The substantiative gang offense (section 186.22, subd.(a)) applies to gun possession by a felon when committed by an active gang member acting alone. The evidence supported a finding that defendant was still a member of the gang for purposes of the Penal Code section 186.22, subd.(a) substantive street gang offense even though the gang expert had never heard of him and he had his gang tattoo removed. But he had the tattoo removed to get a job. He also had recently said he was in good standing with the gang, and that he recently purchased a gun because the rival gang was out to “get us.” Finally, defendant could be convicted of the offense while acting alone.id: 22387
The STEP Act allows a predicate offense to be established by proof of an offense defendant committed on a separate occasion.A predicate offense may be established by evidence of an offense the defendant committed on a separate occasion. Moreover, that the prosecution may have the ability (under Evidence Code section 352) to develop evidence of predicate offenses committed by other gang members does not require exclusion of evidence of a defendant’s own separate offense to show a pattern of criminal gang activity. id: 22234
The gang crime described in section 186.22, subd.(a) does not require that the criminal conduct that is promoted or furthered be gang related.Penal Code section 186.22, subd.(a), the substantive gang offense, does not include an unwritten requirement that the felonious criminal conduct that is promoted, furthered or assisted, be gang related. id: 21948
Penal Code section 654 does not prevent punishment for participating in a criminal street gang and assault with a firearm.Defendant argued that Penal Code section 654 prevents separate punishments for assault and for participating in a criminal street gang. However, the criminal street gang statute punishes conduct and intentions that give rise to culpability for assault with a firearm. id: 21682
Evidence that defendant was the direct perpetrator in the robbery supported the element of the gang offense (section 186.22, subd.(a)) that he assisted gang members in criminal conduct.Defendant was convicted of robbery and participating in a gang pursuant to Penal Code section 186.22, subd.(a). He argued there was insufficient evidence to show that he promoted, furthered or assisted in felonious criminal conduct by gang members. However, that element was satisfied by evidence that defendant was the direct perpetrator of the robbery. id: 21270
The substantive crime of active gang participation punished in Penal Code section 186.22, subd.(a) requires proof of gang-related felonious criminal conduct committed by the defendant.The prosecution must show a defendant’s “felonious criminal conduct” under section 186.22, subd.(a) is gang related. The requirement is not a proven by any felonious conduct a gang member commits. Here, the expert testimony showed the defendant’s gang closely controlled narcotics trafficking by its members imposing a tax on drug sales, which the gang enforced by violent reprisals for nonpayment. The jury could reasonably infer defendant, a long-time gang member, knew of and participated in this policy. Therefore, his drug offenses were gang related, and committed for the benefit of the gang. id: 20904
Intent to further gang activity is not a motive so that motive instruction does not conflict with the instructions for the gang offense, enhancement or special circumstance.Defendant argued that the pattern instruction on motive (CALCRIM No. 370) was in conflict with the instructions for the substantive offense of criminal street gang participation, the street gang enhancement and the special circumstance provision. He claimed that although each of those instructions required a finding that he had an intent to further gang activity, the motive instruction contradicted this by telling the jury it did not have to make that finding. However, contrary to defendant’s claim, the intent to further criminal gang activity is not the same as a motive.id: 20839
Evidence supported the section 186.22, subd.(a) conviction despite defendant’s testimony that he was no longer in the gang.Defendant argued the evidence was insufficient to support his conviction of street terrorism under Penal Code section 186.22, subd.(a) because there was insufficient evidence to show he was still a gang member. He cited his own testimony where he stated he was no longer in the gang and was visiting childhood friends and family members at the time of the present offenses. However, he admitted being a founder and “shot caller” for the gang. And while he testified that he left the gang years ago, the detective testified that based on his contacts, he thought defendant was still active. This was sufficient.id: 20781
Any ambiguity in instructions suggesting misdemeanor assault might constitute a predicate offense for the gang charge and enhancement was harmless where the evidence showed only aggravated assaults.Defendant argued misdemeanor assault was erroneously listed as a predicate offense to support the gang charge and enhancement allegations under Penal Code section 186.22. While the instructions on the predicate offenses were ambiguous as to what kind of assault would qualify as a predicate offense, the prosecutor presented evidence of three assaults, none of which were misdemeanors.id: 20780
The section 186.22 street gang crime is not a lesser included offense of first degree murder with the street gang enhancement.The criminal street gang offense described in Penal Code section 186.22, subd.(a) is not a lesser included offense of the functional greater equivalent of the single greater crime of first degree murder with the criminal street gang enhancement. The trial court did not err in failing to stay the term for the street gang crime.id: 19567
The jury was not required to unanimously agree on which two or more crimes constituted a pattern of criminal activity for gang provisions.Defendant was charged with participating in a criminal street gang under Penal Code section 186.22, subdivision (a) and the street gang enhancement under section 186.22, subdivision (b)(1) was also alleged. Defendant argued the court should have instructed the jurors they had to unanimously agree on which two of several possible predicate offenses established that 18th Street had engaged in a pattern of criminal gang activity and was therefore a criminal street gang. However, no unanimity instruction was required because a pattern of criminal gang activity contemplates a continuous course of conduct.id: 10539
Injunction only prohibits conscious expression of gang affiliation and does not prohibit unintentional actions interpretable as gang related.Provisions of the gang abatement injunction prohibit gang members from using phrases, gestures or symbols commonly associated with the gang. It also prohibits the wearing of certain clothing which spells out or is otherwise associated with the Posole gang. However, the questioned provisions only enjoin the conscious expression of gang affiliation, support and allegiance. Defendant would not be in violation if he unintentionally formed a hand sign interpretable to the gang or wore a jersey in a football game bearing a number forbidden by the injunction.id: 14878
In defining "gang membership" for purposes of an injunction it need not be shown that all or most of defendant's time and efforts are devoted to the gang.In determining whether defendant was a gang member for purposes of the gang abatement injunction it was not necessary that the prosecutor prove defendant devoted all or a substantial part of his time and efforts to the gang. Instead, it must be shown that defendant's participation or acting in concert is more than nominal, passive, inactive, or purely technical.id: 14877
Gang injunction is not more burdensome than necessary by infringing on protected family relationships.Defendant argued the gang injunction was overly broad in that it prohibited association with other gang members who may be family. While the injunction has a limited impact on family relationships it is necessary to the effectiveness of the injunction and does not impermissibly burden defendant's associational rights.id: 14876
Participation in street gang offense applies to perpetrators as well as aiders and abettors.Defendant argued there was insufficient evidence to support his conviction of participation in a street gang under Penal Code section 186.22, subd.(a), because there was no proof that he aided and abetted a felonious act actually committed by another gang member. However, the statute applies to the perpetrator of felonious gang-related criminal conduct as well as to the aider and abettor.id: 14880
Gang expert's testimony was sufficient to support the street terrorism conviction even though it was based on a set of hypothetical facts that did not include defendant's statement that he sold drugs for a nongang-related purpose.Defendant argued there was insufficient evidence to show he intended to further the gang's felonious conduct by selling drugs and that his conviction of street terrorism should be reversed. He claimed there was direct evidence that he sold the drugs to raise money to buy a car which was not gang related. However, the gang expert's testimony was sufficient to support the conviction even though it was based on a set of hypothetical facts that did not include his statement to the officer about raising money to buy a car.id: 17593
Evidence supported the gang crime and enhancement where the minor admitted his gang membership, wore its colors, and sought to rob his former girlfriend who the gang later attempted to dissuade from testifying.The minor admitted to associating with the Norte�ang, and the Santa Rita gang, which is a subgroup of the former. He was observed wearing gang colors (red) and said he was not afraid to help his gang. Also, the robbery victim had written about the minor in her diary and referenced his gang association. Finally, her family received a note from the Norte�seeking to dissuade their testimony. The evidence was sufficient to support the juvenile court's finding that the minor was an active gang member and committed the charged crimes for the benefit of a criminal street gang.id: 17209
The trial court was not required to instruct the jurors of a need to find defendant aided and abetted an offense in addition to the underlying gang offense for purposes of section 186.22, subd.(a).Defendant argued the trial court erred by modifying CALCRIM
NO. 1400 and claimed the trial court should have instructed that a person cannot be guilty of street terrorism under Penal Code section 186.22, subd.(a) unless he or she aids and abets a
separate felony in addition to the underlying gang-related felony offense. However, requiring a separate felony would defeat the Legislature's purpose of making gang participation itself a separate crime. Moreover, the felonious criminal conduct need not be a predicate crime listed under section 186.22, subd.(e).id: 19533
Defendant's comprehensive knowledge of gang activities, coupled with the gang expert's testimony, and his weapons offense supported the finding that he was an active participant in a gang.Defendant argued there was insufficient evidence to support
the Penal Code section 186.22 street terrorism conviction and gang enhancement. However, evidence of actual knowledge of a gang's current activities, including information about where
gang members had hidden gang guns and the identity of members who were involved in gang shootings, when an expert testifies such information is available only to other active gang members satisfies the statutory requirement of active participation in a gang.id: 19783
Evidence supported the street gang conviction where the expert testified that King Kobras is a documented gang and defendant admitted membership.There was sufficient evidence to support defendant's conviction for street terrorism under Penal Code section 186.22, subd.(a). The gang expert testified King Kobras is a street gang with over 100 members who identify themselves with tattoos and commit robberies and assaults. Defendant committed the present robbery with another gang member. The expert also testified defendant was an active gang member in light of his tattoos and admission that he was a gang member, even though he had moved away from the gang territory several years earlier.id: 20046
CALCRIM 1400 did not suggest the street terrorism count could be proven based on gang membership alone.CALCRIM No. 1400 defining street terrorism for purposes of Penal Code section 186.22, subd.(a) sets out the elements of the crime and dispels the claim that it is reasonably, probable the jury could convict based on gang membership alone. The title of the instruction is of no consequence since it was not read to the jury.id: 20048
Active participation in a gang under section 186.22, subdivision (a) does not require a showing that defendant held a position of leadership in the gang.Penal Code section 186.22, subdivision (a) imposes criminal liability when a defendant "actively participates" in a street gang while aiding and abetting a felony committed by the gang's members. To prove the defendant "actively participates" in the gang it is not necessary to show that he held a position of leadership in the gang. It is sufficient if the evidence shows the defendant's involvement with the gang is more than nominal or passive.id: 15493
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Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245