Gang Enhancement (PC 186.22(b))
Category > Gang Enhancement (PC 186.22(b))
Updated 3/19/2024Predicate offenses must be linked to the organization of the gang in order to qualify for the gang enhancement after AB 333.AB 333 modified the requirements for proving the predicate offenses necessary for imposition of the gang enhancement under Penal Code section 186.22(b). Under the revised law, a street gang is a group whose members collectively engaged in a pattern of criminal gang activity. Predicate acts may be committed by one or more gang members but the prosecution must prove a connection between the offense and the gang. In proving collective engagement, it must show more than a benefit to the gang. The organizational nexus may be shown by evidence linking the predicate offenses to the gang’s organizational structure, its primary activities or its common goals and principles.id: 28223
Updated 3/4/2024AB 333 applied retroactively to defendant’s case where his resentencing took place after the effective date of the new law.Defendant’s case was remanded for resentencing in 2021, but the resentencing did not take place until 2022 - after the effective date of AB 333. The resentencing court erred in finding the amendments to the gang enhancement law did not apply because AB 333 applies to any case that was not yet final on appeal, and defendant’s case was not final.id: 28170
Updated 3/4/2024Gang enhancement and special circumstance were reversed given the retroactive application of AB 333.Following trial, AB 333 amended the law relating to the gang enhancement and gang murder special circumstance provisions. The law applied retroactively to defendant’s case and required reversal of the special circumstance and enhancement findings. The instructions given at trial were not harmless where they provided a definition of a criminal street gang that was no longer valid.id: 28185
Updated 2/22/2024The trial court prejudicially erred when defining “association” for purposes of the gang enhancement as a relationship between two individuals rather than a association between the crime and a gang. During deliberations, the jury asked the court to define “association” for purposes of the Penal Code section 186.22(b) gang enhancement. The court responded that association meant two or more people coming together for a common interest and to commit an act. The instruction was erroneous as the court should have said association simply means the crime is connected to a specific gang. The court’s instruction on “association” diverted the jury’s focus away from the crimes association with a gang and towards an association between the two defendants.id: 27211
Updated 2/7/2024The evidence was insufficient to support the gang enhancement where the defendant acted alone, made no reference to a gang, and told no one about it later.The evidence was insufficient to support the gang enhancement that was attached to the robbery conviction. Defendant worked alone, had no gang tattoos or clothing, did not mention the gang and did not tell anyone about the robbery. The evidence showed the robbery was committed solely for the gang member’s benefit.id: 27157
Updated 2/4/2024AB 333 which modified the substantive and procedural requirements of the gang enhancement statutes applies retroactively to cases pending on appeal.AB 333, which provided among other things, that in proving the gang enhancement under Penal Code section 186.22 (b), the prosecution must show the benefit to the gang was “more than reputational,” applied retroactively to defendant’s case that was still on appeal at the time the law was passed. The error in allowing the improper gang evidence was not harmless where the basis of the jury’s verdict was not clear. id: 27780
Updated 2/4/2024The trial court erred in imposing both a gang and firearm use enhancement where the defendant did not personally use a firearm. In cases where the defendant did not personally use a firearm, the trial court may not impose both a gang enhancement under Penal Code section 186.22 (b) and a firearm enhancement. id: 27781
Updated 2/4/2024Evidence did not support the gang expert’s conclusion that defendant carried the concealed knife to benefit or promote his gang.Defendant was a gang member walking with another gang member in the gang’s territory. He was stopped and found to be carrying a concealed knife which the state’s gang expert concluded was to benefit the gang. However, the evidence was not sufficient to support the imposition of the Penal Code section 186.22 (b) gang enhancement since the expert’s opinion was speculative and there were no facts showing the defendant carried the concealed knife in order to promote the gang. id: 27350
Updated 2/3/2024After defendant’s case was sent back for resentencing under section 1170 (d), it was no longer final and so the court applied AB 333 to reverse the gang conviction.Defendant’s case was sent back to the trial court for resentencing under Penal Code section 1170 (d) (recently changed to section 1170.03). At that time his case was no longer “final” and the trial court was required to reverse the gang offense under AB 333 and vacate the gang enhancement allegations.id: 27550
Updated 2/3/2024Expert opinion regarding crime benefitting the gang’s reputation for violence was not sufficient to support the gang enhancement in a lone-actor case.Defendant was a gang member who was convicted of shooting at a dwelling under Penal Code section 246 along with a true finding on the gang enhancement under section 186.22 (b). He acted alone in the shooting incident. However, the evidence did not support the finding on the gang enhancement. Without more, expert testimony about the reputational benefits of crime did not support an inference that a lone gang member committed a crime for gang-related reasons–as opposed to acting from other more personal motives.id: 27557
Updated 2/3/2024Under AB 333, the prosecution must prove that at least two gang members committed each predicate offense. Under the newly enacted AB 333, the Penal Code section 186.22(b) gang enhancement requires that gang members “collectively engage” in a pattern of criminal activity, which means the prosecution must prove that two or more gang members committed each predicate offense. There was insufficient evidence that two or more gang members participated in the predicate offenses listed in defendant’s case. It was not enough to show that individual members committed the predicate offenses on separate occasions.id: 27790
Updated 2/3/2024AB 33, which amends the criminal street gang enhancement, applies retroactively to all cases not final as of its effective date - January 1, 2022. Assembly Bill 333, which amends the gang enhancement statute (Penal Code section 186.22(b) to require additional elements of proof, applies retroactively to all cases not final when the law takes effect. The enhancement findings were reversed since the definition of criminal street gang has been narrowed and new elements added.id: 27755
Updated 2/3/2024AB 333’s amendments to gang statute applies retroactively to the showing required at the preliminary hearing.AB 333 amendments to Penal Code section 186.22 apply retroactively to the showing required at the preliminary hearing. The prosecution may move to reopen the preliminary hearing proceedings to present additional evidence on the amended elements of the gang-related charges or proceed without them.id: 27863
Updated 2/2/2024The failure to instruct that Penal Code section 186.22 requires evidence of benefit to the gang that was more than “reputational” was not harmless under the Chapman standard.AB 333 modified the gang statute and now requires that, in order to demonstrate a pattern of criminal gang activity for the purpose of establishing a criminal street gang, the prosecution must prove that the two predicate offenses “commonly benefitted a criminal street gang, and the common benefit was more than reputation.” The trial court’s error in failing to instruct that the predicate offenses must have commonly benefited the gang in more than a reputational manner was not harmless beyond a reasonable doubt.id: 27877
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 2/1/2024Defendant’s conviction for conspiracy to commit home invasion robbery was not subject to the indeterminate term provided in section 186.22(b)(4).Defendant was convicted of conspiracy to commit home invasion robbery in violation of Penal Code section 182, the general conspiracy statute. Because he was convicted of conspiracy and not the completed crime, the trial court erred by imposing the 15 years-to-life term under section 186.22(b)(4), which applies to specified felonies (including home invasion robbery) when those felonies are found to be gang-related.id: 27958
Updated 2/1/2024Penal Code section 1109, which allows for the bifurcation of gang enhancements under AB 333 applies retroactively.Assembly Bill 333 applies retroactively, including the section that added Penal Code section 1109, which allows for bifurcated trials on gang enhancements. Retroactive application of that provision required reversal of the robbery convictions and gang enhancements.id: 27967
Updated 1/31/2024AB 333 is fully retroactive to nonfinal cases, but section 1109 does not apply to gang special circumstance allegations.AB 333, which amended Penal Code section 186.22 and added a new statute, section 1109, is fully retroactive to all nonfinal judgments. Moreover, section 1109, as currently written, does not apply to gang special circumstance allegations under section 190.22(a)(22).id: 28021
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
Updated 1/29/2024On remand, defendant would be entitled to the application of the new definition of the gang offense that was used as a strike prior.Defendant’s case was remanded for resentencing to clear up an ambiguity as to whether the trial court found the strike priors to be true. One of the priors was for the gang offense described in Penal Code section 186.22(a). That provision was later amended under AB 333. On remand, the defendant may challenge the sufficiency of the evidence regarding that offense and is entitled to application of the new definition of the offense. The prosecution would be entitled to add to its showing. The amended version of section 654 provided in AB 518 also applies and the court will have the opportunity to exercise its discretion under that provision as well.id: 27894
Evidence did not support the gang enhancement where the expert testified about the Nortenos but failed to link the relevant subsets to one another or to the greater Norteno gang. The evidence was insufficient to support the Penal Code section 186.22, subd.(b) gang enhancements because the required predicate offenses the gang expert testified about were committed by members of Norteno subsets that were different than the subsets to which the defendants belonged and there was no substantial evidence linking these subsets to each other or to the greater Norteno gang. This was error under People v. Prunty (2015) 62 Cal.4th 59. Moreover, because the vicarious firearm enhancements under Penal Code section 12022.53, subd.(e)(1) required a violation of section 186.22, subd. (b), those enhancements were reversed as well.id: 24722
The trial court has discretion to strike a gang enhancement under section 1385, subd.(a).The trial court had discretion under Penal Code section 1385, subd.(a) to strike the gang enhancement , and it wasn’t limited under section 186.22, subd.(b)(1). Moreover, the current version of section 1385 doesn’t require a trial court to provide its reasons in a written order, and the court’s oral comments at sentencing were sufficient. id: 24822
There was insufficient evidence to support the gang enhancement where a validated gang member fired a shot at a party thrown by college students.Defendant was convicted of attempted murder, and the jury found the Penal Code section 186.22, subd.(b) gang enhancement to be true. However, the evidence was insufficient to support the gang enhancement. While the shooter was a validated gang member with multiple tattoos that did not refer to the gang, the party was not in gang territory, there were no rival gang members present, there was no gang attire or statements, and there was no evidence of any retaliation. The gang expert’s opinion that such a shooting increases respect for the gang, was not enough to show the shooting was committed to benefit the gang.id: 25466
The trial court erred by imposing a nonserious felony gang enhancement to a serous felony, and should have imposed but stayed the serious felony enhancement.The STEP Act imposes additional penalties where a defendant commits a crime to benefit a gang. The length of the enhancement depends upon whether the felony was serious and violent or nonserious and nonviolent. Defendant was convicted of a serious felony with gang and gun use enhancements. The trial court could not impose both enhancements so it imposed the nonserious enhancement. However, that enhancement could not be added to a serious or violent felony. The serious felony gang enhancement should have been imposed and stayed.id: 25409
Gang allegation reversed where the expert used defendant’s statements to jail booking officers in prior cases to conclude defendant was a gang member. In People v. Elizalde (2015) 61 Cal.4th 523, the court found that use of a defendant’s response to routine questions about gang affiliation during jailhouse intake interviews violates a defendant’s Fifth Amendment privilege against self-incrimination. Defendant’s responses to the jailers’ booking questions in prior cases (several years earlier) could not be used as a basis for the gang expert’s opinion when attempting to satisfy the elements of the Penal Code section 186.22, subd.(b) gang enhancement.id: 25305
The evidence did not support the gang enhancement allegation where the expert failed to provide specific information on the relevant gang subset.The prosecution presented insufficient evidence to show that defendant’s Oak Park subset of the Norteno gang qualified as a street gang for purposes of the Penal Code section 186.22, subd.(b) enhancement. In People v. Prunty (2015) 62 Cal.4th 59, the court found the prosecution must explain the theory of how a street gang exists based on the conduct of one of its subsets. Here, the gang expert failed to provide specific testimony about the conduct of the subset.id: 24666
The trial court erred in sentencing defendant to a consecutive 10-year term for the gang enhancement on each of the life terms to which he was sentenced. The trial court erred when it imposed separate 10-year gang enhancements on each of 10 counts carrying indeterminate life terms. Instead, the court should have imposed a minimum parole eligibility term of 15 years. id: 24511
The prosecution failed to introduce sufficient evidence showing a connection of the subsets to prove the street gang enhancement.When the prosecution relies on the conduct of subsets to show a criminal street gang’s existence (for purposes of the Penal Code section 186.22, subd.(b) gang enhancement), it must show a connection among the subsets, and also that the gang those subsets comprise is the same gang the defendant sought to benefit. The failure to show the connection among the subsets required a reversal of the street gang enhancement finding. id: 24254
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
A trial court may not impose both firearm and gang enhancements in connection with a single offense where the offense is a serious felony for purposes of the gang enhancements because of the firearm use.A trial court is precluded from imposing both a firearm enhancement under Penal Code section 12022.5, subd.(b)(1)(B) and a serious felony gang enhancement under section 186.22, subd.(b)(1)(B) when the crime qualifies as a serious felony solely because it involved firearm use. Because both enhancements were based on defendant’s use of a firearm when committing a single offense, section 1170.1, subd.(f) requires that only the greater of the two enhancements may be imposed.id: 24125
The trial court had the power under section 1385 to dismiss the gang allegation. The trial court dismissed the Penal Code section 186.22, subd.(b) gang enhancement pursuant to section 1385. The prosecution argued that under section 186.22, subd.(g) the trial court had the power only to strike the punishment for the enhancement rather than the enhancement itself. However, the enactment of section 186.22, subd.(g) did not eliminate the trial court’s power to dismiss an enhancement under section 186.22, subd.(b). The trial court failed to state its reasons for dismissing the enhancement so the matter was remanded to allow the court to provide reasons. id: 23748
The gang enhancement was not supported by proof of the “commission” of one or more of the alleged predicate offenses because the jury was instructed only that the person must have been “convicted” of the offense.Defendant was convicted of negligently discharging a firearm and it was further determined that the shooting was gang related for purposes of the Penal Code section 186.22, subd.(b) enhancements. However, because the jury was not instructed that a predicate offense may be proved by the commission of a crime, defendant’s alleged commission of a crime cannot serve as a predicate offense for the gang enhancement. Criminal offenses for which defendant was charged but acquitted, cannot serve as the basis for predicate offenses under section 186.22, subd.(e).id: 23526
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 lone actor may be subject to the gang enhancement, but the enhancements were reversed for insufficient evidence of defendant’s specific intent to further criminal conduct by gang members. In People v. Rodriguez (2012) 55 Cal.4th 1124, the court held that a person who acts alone cannot be convicted of the street gang substantive offense described in Penal Code section 186.22, subd.(a). The same rule does not apply to the enhancement provision (section 186.22, subd.(b)) which enhances punishment when a defendant is found among other things to have acted with a specific intent to further or assist criminal conduct by gang members. However, the expert testimony was insufficient to support an inference that defendant stole the car to further or assist in criminal conduct by the gang. And there was no evidence that he was in gang territory, used the gang name, displayed signs or had gang tattoos or clothing. Absent evidence of an intent to assist a gang, the enhancements attached to two counts were reversed.id: 23440
The trial court prejudicially erred by instructing on the elements of the gang offense rather than the gang enhancement, and the error required reversal of the gang and firearm use enhancements.The gang enhancement findings had to vacated where the trial court improperly instructed the jury on the elements of the gang crime described in Penal Code section 186.22, subd. (8), when the defendants were charged with the gang enhancement described in section 186.22, subd. (b). The true findings in the firearm use enhancements were also vacated because they were dependent on the jury also finding true the gang enhancement allegations.id: 23255
The life term for the gang enhancement under 186.22, subd.(b)(4) did not apply where there was no finding that the witness intimidation involved a threat of force.The trial court used the Penal Code section 186.22, subd. (b)(4)(c) to impose a seven years-to-life term for the witness intimidation conviction. However, the provision requires a finding that the offense was committed with an express or imped threat of force. The information did not allege a threat, there was no jury instruction on the issue and no specific jury finding. The trial court therefore erred by imposing the life term under section 186.22, subd. (b)(4). id: 23382
The trial court violated Apprendi by imposing the life term for the section 186.22, subd. (b)(4) gang enhancement with a jury finding on the threat element. The trial court erred using the Penal Code section 186.22, subd. (b)(4) gang enhancement to impose a life term for the extortion conviction. The provision requires a finding that a gang threat was used to commit the crime. The jury was instructed on alternate theories that the crime was committed using force or threats but the verdict form only referred to force. Under Apprendi v. New Jersey (2000) 530 U.S. 466, the life term could not be imposed absent a jury finding on the threat element.id: 23383
Because the jury did not find defendant’s witness dissuasion involved a threat of force the court erred by imposing a 7 years-to-life term under section 186.22, subd.(b)(4)(c). Defendant was convicted of attempting to dissuade a witness in violation of Penal Code section 136.1. The trial court imposed a sentence of 7 years-to-life (which was doubled because of a strike prior) because the jury also found the crime was committed to benefit a gang under section 186.22, subd.(b). However, that term only applies where the jury finds defendant used an express or implied threat of force and no such finding was made here. The trial court therefore erred by imposing the 7 years-to-life term under section 186.22, subd. (b)(4)(c). id: 22865
The trial court did not err by staying the sentence for the section 12022.5(a) firearm use enhancement and imposing the 10 year “violent felony” term for the section 186.22, (b)(1)(c) gang enhancement. The trial court did not err when it found it lacked discretion to impose both the personal use enhancement under Penal Code section 12022.5, subd.(a) and the gang enhancement under section 186.22, subd.(b)(1)(B) or (b)(1)(c). It did not matter that the gang enhancement was generically pled and there was no gun use allegation or finding made by the jury in connection with that enhancement.id: 22690
The trial court improperly imposed enhancements for both personal firearm use and committing a violent felony to benefit a gang.Defendant was improperly convicted of both assault with a semiautomatic firearm under Penal Code section 245, subd.(b) (two counts) and assault with
a firearm under section 245, subd.(a)(2) because the latter was a lesser included offense of the former. The court also erred by imposing ehancements for both personal firearm use under section 12022.5, subd.(a), and committing a violent felony to benefit a gang under section 186.22, subd.(b)(1)(c), as section 1170.1 provides that only the greater of the
enhancements could be imposed. id: 22825
Evidence did not support the gang expert’s finding that the robbery was committed to gain respect for the gang where there was no showing that the minor referred to a gang or that the victim or witnesses were aware of that fact.The minor defendant attempted to walk a bottle of liquor out of a supermarket after his gang member friends had already left the store. A struggle ensued and the minor was found to have committed robbery along with a true finding on the Penal Code section 186.22, subd.(b) gang enhancement. The expert’s opinion that the violent crime was committed to gain respect for the gang and intimidate others was not supported by the evidence where there was no showing that the minor referred to the gang or that the victim or other witnesses knew a gang member committed the crime. id: 22204
Criminal threats under Penal Code section 422 is not a violent felony and the trial court therefore erred in imposing the 10 year enhancement under section 186.22 (b)(1)(c).The trial court erred by imposing a 10 year gang enhancement under Penal Code section 186.22, subd.(b)(1)(C) in the criminal threats counts because that provision only applies when the felony conviction at issue is a “violent felony,” which criminal threats is not. However, the trial court could have imposed a five year enhancement under section 186.22, subd.(b)(1)(B) which applies to “serious felonies,” and so the court instructed that the five year enhancement be imposed on remand.id: 22503
The section 12031(a)(c) gang allegation requires proof of felonious conduct other than the gun possession underlying the section 12031(a)(1) charge even though the section 12031(a)(1) conduct can support multiple offense allegations. The juvenile court found the minor violated Penal Code section 12031(a)(1) - carrying a loaded firearm in a vehicle. The section 12031,subd. (a)(2)(c) gang allegation elevates the otherwise misdemeanor offense to a felony. The offense must be reduced to a misdemeanor because the prosecution failed to prove defendant engaged in “felonious criminal conduct” for purposes of the gang allegation as that requirement refers to felonious conduct distinct from the underlying misdemeanor gun possession.id: 22297
Defendant did not constructively possess the gun found in the motel room under the codefendant’s mattress. Defendant was convicted of being a felon in possession of a firearm along with the Penal Code section 186.22, subd.(b) gang allegation and the section 186.22, subd.(a) gang participation offense. However, evidence did not support the gun possession conviction which was based on a theory of constructive possession, where the defendant and a gang member were partying with prostitutes in a motel room, and the gun was located under the codefendant’s mattress. The evidence, including the testimony of the gang expert, did not show defendant had a right to control the firearm. The gang enhancement and substantive offenses were also reversed because they were based on the firearm possession charge.id: 22201
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 by imposing both the 25 year gun enhancement and the minimum parole eligibility under the gang statute. Defendant was convicted of
attempted premeditated murder with various enhancements. Because the trial court imposed the
Penal Code section 12022.53, subd.(d) gun use enhancement, it was barred from also imposing
the 15 year minimum parole eligibility period under the gang statute - section 186.22, subd.
(b)(5).id: 21340
Evidence did not support the gang enhancement where it was not shown defendant committed the carjacking for the benefit of his gang rather than himself.Defendant was convicted of carjacking and attempted robbery, and the jury found the Penal Code section 186.22, subd.(b) gang enhancement allegation to be true. However, the evidence did not support the true finding on the gang enhancement. While the gang expert testified that gang members often steal cars there was no evidence that defendant’s gang committed car thefts in a distinctive manner as they did in this case or that only gang members commit carjacking, or that a gang member could not commit a carjacking for his own benefit rather than that of the gang. Defendant here was alone and did not identify his gang. The evidence did not establish that he committed the offenses to benefit the gang.id: 21267
The trial court erred in sentencing defendant who did not personally fire the gun to both a life term under section 186.22, subd.(b)(4) and the 10 year enhancement under section 12022.53, subds.(b) and (e)(1).Defendant was convicted of a gang related crime in the commission of which he did not personally discharge a firearm, but a companion did. The trial court sentenced him to life in prison because of his participation in a criminal street gang and an additional term because of the gun use. However, the life term was proper but because he did not personally fire the gun, the additional term under Penal Code section 12022.53, subds.(b) and (e)(1) was not.id: 21244
With the underlying assault with a deadly weapon offense, the trial court could not add the one year armed principal enhancement (although is could add a five year gang enhancement).Defendant’s underlying offense of assault with a deadly weapon under Penal Code section 245, subd.(a)(2) involved the personal use of a firearm as an element, and thus the trial court improperly imposed a one year armed principal enhancement under section 12022, subd.(a)(1). Moreover, because the underlying offense was a “serious” but not “violent felony the trial court was required to impose only the five year (rather than the ten year) section 186.22, subd.(b) gang enhancement.id: 20595
Instruction allowing a finding on the gang enhancement based on a nonqualifying predicate offense was harmless where the jury necessarily found two other qualifying offenses.The trial court erroneously instructed the jury that for purposes of the Penal Code section 186.22, subd.(b) gang enhancement, battery with serious bodily injury may serve as one of the predicate offenses. That offense is not among those listed under section 186.22, subd.(b)(1). However, the error was harmless where the jury necessarily found two qualifying offenses to be true.id: 20345
The trial court erred in adding a 10 year term for the section 186.22,subd.(b) gang enhancement to defendant’s life term.Defendant received a 15 years-to-life term for the second degree murder conviction and an additional 10 years for the Penal Code section 186.22, sub.(b) gang enhancement. However, the 10 year term cannot be added to a life term. Instead, the court should have imposed a limitation on defendant’s parole eligibility of 15 years (doubled because of a strike prior) pursuant to section 186.22, subd.(b)(5).id: 20472
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
Expert's conclusory statements did not establish evidence of the gang's "primary activity" for purposes of the gang enhancement.Without any foundation for his knowledge, the gang expert testified that he knew members of Varrio Viejo had been involved in certain crimes and that two crimes had been committed in 2004 by members of the gang. However, this did not constitute substantial evidence that gang members had "consistently and
repeatedly" committed crimes listed in section 186.22. The gang enhancement was therefore reversed.id: 19548
Gang evidence suggesting shootings occurred for gang respect was irrelevant and highly inflammatory rendering the entire trial fundamentally unfair.Defendant was charged with several felony offenses along with Penal Code section 186.22 gang allegations. However, the court erred in admitting the gang evidence which was extremely prejudicial and not relevant to the underlying charges. A gang-related motive for the shootings was not apparent and the gang expert's opinion that the shootings occurred to gain respect for the gang and enhance the shooter's reputation within the gang was supported solely by evidence of defendant's membership in the gang. Given the highly inflammatory nature of the gang evidence, its admission rendered defendant's trial fundamentally unfair and reversal of all convictions was required.id: 19534
Crimes may not be found to be gang related for purposes of the Penal Code section 186.22, subd.(b) enhancement based solely on the perpetrator's criminal history and gang affiliations.The evidence did not support the juvenile court's finding that the minor possessed the weapon for the benefit of his gang with the intent to promote the gang's activities. The prosecution presented no evidence other than the gang expert's opinion regarding gangs in general, and the expert's improper opinion on the ultimate issue to show the weapon possession was committed for the benefit of the gang. There was no evidence showing the minor was in gang territory, was with gang members, or had a reason to expect to use the knife in a gang related offense.id: 19168
The trial court abused its discretion in refusing to bifurcate the trial of a street gang enhancement from the underlying offenses.The trial court erred in refusing to bifurcate the trial of the criminal street gang enhancement from the trial of the underlying offenses. The evidence of the robbery charge was strong while the evidence of the attempted carjacking was weak. The gang enhancement evidence had the potential to "spill-over" to the weak case. However, the error was harmless since the robbery evidence was strong and the court dismissed the attempted carjacking count in the interest of justice.id: 17422
Pattern of criminal gang activity for enhancement purposes cannot be established by use of predicate crimes which occur after the crime for which defendant is being tried.A defendant's sentence cannot be enhanced on the basis of acts committed by others months and years after this crime had been completed. For this reason, a pattern of criminal gang activity within the meaning of Penal Code section 186.22 cannot be established by use of predicate crimes which occur after the crime for which defendant is being tried. Because the predicate crimes submitted to distinguish the pattern in this case all occurred after the charged crime, the criminal street gang enhancement was stricken.id: 9873
Hearsay evidence of record of conviction was insufficient to establish the existence of a pattern of gang activity for purposes of the gang enhancement.Defendant was convicted of aggravated assault and the jury found true an enhancement that defendant participated in a criminal street gang under Penal Code section 186.11. However, the only evidence supporting an essential element of the gang enhancement, a pattern of criminal gang activity were the earlier records of conviction. These records were hearsay and inadmissible to prove the underlying offenses.id: 13911
For purposes of street gang enhancement, proof that gang committed certain crimes must be shown by evidence other than the current crimes.The provision in Penal Code section 186.22, subdivision (f), that a criminal street gang have as one of its primary activities the commission of certain enumerated crimes, requires proof of such crimes other than the current crimes. However, the requirement of showing engagement in a pattern of criminal gang activity may be established by proof of a current offense.id: 13907
There is no pattern of gang activity where one gang member aids and abets an assault by preventing others from stepping in.When a defendant commits an aggravated assault and a fellow gang member aids and abets that assault by preventing anyone from stepping in, their conduct does not amount to "two or more offenses" committed "on separate occasions, or by two or more persons" so as to establish a "pattern of gang activity under the Penal Code section 186.22 enhancement. The combined activity of the defendant and his companion, who facilitated the commission of the assault, was a single offense.id: 16236
Court erred in imposing an eight month term for a gang enhancement to defendant who received a life term.Defendant was convicted of several charges including two counts of deliberate and premeditated attempted murder. He received a life term. The court erred in imposing an additional eight month term for the gang enhancement under Penal Code section 186.22, subdivision (b)(1) because that provision specifically excludes someone punished with a life term.id: 16224
Following the indeterminate term for the murder conviction, the court erred in imposing the 10-year gang enhancement rather than the alternate criminal street gang penalty of a 15 year minimum term on his parole eligibility.Defendant was sentenced to 25 years-to-life for the murder conviction plus a 10-year consecutive criminal street gang enchantment pursuant to Penal Code section 186.22, subd.(b). However, the court erred in imposing the 10 year gang enhancement as determinate gang enhancements are to be imposed only when a determinate term is imposed. The court should have imposed the alternate criminal street gang penalty 15-year minimum parole eligibility of section 186.22, subd.(b)(5).id: 17383
A defendant who commits first degree murder for the benefit of a gang is not subject to the 10 year gang enhancement under section 186.22, subd.(b).A gang-related first degree murder, which is punishable by a term of 25 years-to-life, does not carry an additional 10-year enhancement under Penal Code section 186.22, subd.(b)(1)(c).id: 18298
Evidence did not support the section 186.22, subd.(b) gang enhancement despite the attempted murder of an Asian gang member where it was not shown that defendant's gang consistently and repeatedly committed such crimes.Defendant was convicted of attempted murder, along a finding that the offense was committed for the benefit of a street gang under Penal Code section 186.22, subd.(b). However, the evidence was insufficient to support the enhancement since it failed to establish that the gang's primary activities were the commission of enumerated crimes. Assuming defendant's Hispanic gang was responsible for the shootings of Asians several days earlier, as well as the present Asian victim, and that they had severely beaten an Asian six years earlier, the evidence did not show the group members "consistently and repeatedly" committed criminal activity listed in the gang statute.id: 17854
For purposes of gang enhancement statute, jury may consider circumstances of the crime in determining the group's primary activities and the failure to instruct on the element is federal constitutional error.Penal Code section 186.22, subd.(b) provides an enhancement for crimes committed to benefit street gangs. In determining whether a group constitutes a "gang" for purposes of the statute, the jury can look to its "primary activities." The jury may consider the circumstances of the charged crimes on the issue of the group's primary activities. Moreover, for felonies not punishable by a life term, the enhancement "increases the penalty" for the crime under Apprendi. Because the primary activities finding is an element of the enhancement the court's failure to instruct on the necessity of such a finding is federal constitutional error which is evaluated under the Chapman standard.id: 16403
Updated 7/12/2024Penal Code section 1109 provisions allowing for bifurcation of gang enhancements do not apply retroactively to cases not final on appeal.AB 333 amended Penal Code section 186.22 in significant ways including the addition of Penal Code section 1109 which provides that, upon request, the trial court must try a gang enhancement charge separately from the underlying offense. However, section 1109’s provisions governing bifurcation do not apply retroactively to cases not yet final on appeal. In re Estrada (1965) 63 Cal.2d 740, which provides for the retroactive application of new provisions that reduce sentences does not apply to prophylactic rules of criminal procedure.id: 28318
Updated 4/13/2024Gang with an informal structure was sufficiently “organized” to qualify as a street gang under section 186.22(f).The trial court granted the defendant’s Penal Code section 995 motion to dismiss the gang charge, allegations and enhancement finding that “Page Street” was not a criminal street gang for purposes of section 186.22(f). However, the group was sufficiently “organized” to qualify as a street gang given that gang structures may be informal, and here certain members had more influence than others and members had rules in carrying out crimes.id: 28239
Updated 4/13/2024Gang with an informal structure was sufficiently “organized” to qualify as a street gang under section 186.22(f).The trial court granted the defendant’s Penal Code section 995 motion to dismiss the gang charge, allegations and enhancement finding that “Page Street” was not a criminal street gang for purposes of section 186.22(f). However, the group was sufficiently “organized” to qualify as a street gang given that gang structures may be informal, and here certain members had more influence than others and members had rules in carrying out crimes.id: 28240
Updated 3/7/2024The trial court properly imposed gang and great bodily injury enhancements but stayed the latter.Defendant argued the sentencing court violated Penal Code section 1170.1 by imposing enhancements under both Penal Code sections 186.22 (b)(1)(c) and 12022.7 (a) based on a finding of great bodily injury. However, there was no error as the court imposed but stayed the section 12022.7 enhancement.id: 26300
Updated 3/4/2024The proper remedy after reversal following the new gang enhancement law is remand to allow the prosecution to recharge the case. AB 333's substantive changes to the gang enhancement applied retroactively to defendant’s case. The predicate offenses were committed by one gang member acting alone, and the jurors were allowed to consider the current offenses in determining whether the prosecution had proven a pattern of gang activity. The case was remanded to allow the prosecution an opportunity to retry the charges. id: 27806
Updated 3/4/2024AB 333 required retrial of the gang enhancement, and there was no Prunty violation where no gang connections involved Sureno subsets. Because AB 333 applies retroactively, defendant’s gang enhancements were reversed as the proof offered at trial did not satisfy the new requirements of the law. Defendant argued further that because the evidence was insufficient to support the enhancement the matter could not be retried. He argued under People v. Prunty (2015) 62 Cal.4th 59, that because the state’s theory was that the crimes benefitted the broader Surenos gang, it had to show a connection between that gang and the local subsets. However, there was no violation of “the sameness” requirement because the state showed the group the defendant acted with, the group that committed the predicate offenses, and the group whose primary activities were introduced was the same gang — The Surenos. id: 27788
Updated 3/4/2024The application of AB 333 to the gang-murder special circumstance doesn't violate the limitation on legislative amendment described in Prop 21.Proposition 21, which added the gang-murder special circumstance in 2000 does not permit amendment of its provisions except by the voters or by legislative amendment passed with a two-thirds majority of each house. Application of AB 333, which amended the definition of “criminal street gang” in the Penal Code section 186.22(b), does not constitute an unlawful amendment to Prop 21.id: 28171
Updated 3/4/2024AB 333’s amendments to Penal Code section 186.22 did not apply retroactively to alter the strike status of defendant’s 2002 conviction.AB 333 did not apply to alter the status of defendant’s prior strike conviction. Evidence supported the the court’s finding that defendant’s prior gang-enhanced felony constituted a strike.id: 28192
Updated 2/23/2024Evidence supported the gang enhancement where it showed the shooting was motivated by both a personal interest and an intent to benefit the gang. Defendant argued there was insufficient evidence to support the Penal Code section 186.22 (b) enhancement because he acted for purely personal reasons and not for the benefit of his gang. Defendant was a member of a gang and the victim was a former member of the rival gang. The victim had an altercation with defendant’s stepfather and such an action shows disrespect to defendant’s gang. The evidence showed both defendant’s personal interest in shooting the victim, and an interest in support of his gang. While defendant didn’t shout out the name of the gang before the shooting or brag about it to his fellow gang members, these things are not required to support the gang enhancement.id: 26783
Updated 2/23/2024Evidence supported the gang enhancement for a nongang member where she knew the shooter was a gang member and knew the shooting was gang related.Defendant was convicted of being an accessory to a gang shooting and the jury found the gang enhancement allegation to be true. Defendant was not a gang member and had only known defendant for a short time. However, evidence supported the Penal Code section 186.22 (b) gang allegation where she knew defendant was a gang member and knew that she was assisting him after a gang shooting.id: 26784
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 2/22/2024AB 333 does not alter the scope of the gang-related murder special circumstance.Proposition 21 added the gang-related murder special circumstance described in Penal Code section 190.2(a)(22). AB 333, which modifies the requirements of a street gang, takes away from Prop 21, and is unconstitutional to the extent it amends the initiatives. The remedy is to find AB 333 inapplicable to the gang-related special circumstance.id: 28027
Updated 2/22/2024A gang-enhanced felony committed before AB 333’s effective date still qualified as a strike prior.Defendant was charged with illegal weapon possession and it was further alleged that he suffered a 2021 prior conviction for possessing a firearm to benefit a gang under Penal Code section 186.22(b)(1). AB 333 amended that provision to require the gun possession provide more than a reputational benefit to the gang. The trial court concluded the offense no longer qualified as a strike. However, because the violation of section 186.22 qualified as a strike on the date of defendant’s conviction of that offense, it continued to qualify as a strike.id: 28106
Updated 2/22/2024Evidence of reliance on trust among gang members was sufficient to support the gang enhancement.Evidence was sufficient to prove the robbery was committed in association with a gang for purposes of section 186.22(b) enhancement. The gang expert testified that gang members rely on the trust of other members, which is what happened here as neither defendant panicked upon discovering a victim, neither hesitated in committing a robbery and neither testified against the other. The evidence showed the men relied on their relationship as gang members to commit the crimes.id: 27210
Updated 2/7/2024Evidence of reliance on trust among gang members was sufficient to support the gang enhancement.Evidence was sufficient to prove the robbery was committed in association with a gang for purposes of section 186.22(b) enhancement. The gang expert testified that gang members rely on the trust of other members, which is what happened here as neither defendant panicked upon discovering a victim, neither hesitated in committing a robbery and neither testified against the other. The evidence showed the men relied on their relationship as gang members to commit the crimes.id: 27209
Updated 2/4/2024Penal Code section 1109 requiring bifurcation of gang enhancements does not apply retroactively.AB 333 added Penal Code section 1109, which provides for the bifurcation of trial on the gang enhancements. However, that provision did not reduce punishment for the enhancements and therefore does not apply retroactively. Even if it applied retroactively, any error in failing to bifurcate was harmless as the evidence of defendant’s gang membership was admissible for another reason and the evidence of defendant’s guilt was overwhelming.id: 27574
Updated 2/3/2024Retroactivity of bifurcation provision in AB 333 was not decided but any error in failing to bifurcate the proceedings was harmless.The provisions in AB 333 regarding the substantive gang enhancement under Penal Code section 186.22(b) and the gang special circumstance allegation in section 190.2(a)(22) applied retroactively and the matter was remanded for further proceedings as to those provisions. The court did not decide the issue of whether the provision allowing bifurcation of the gang allegation (section 1109) was retroactive because it determined that any error in denying bifurcation was harmless.id: 27694
Updated 2/3/2024Gang enhancement was reversed where the prosecution failed to prove the Mexican Mafia prison gang met the STEP Act’s definition of a street gang. Defendant was convicted of aggravated assault, along with a true finding on the Penal Code section 186.22(b) gang allegation. However, the evidence did not support the gang enhancement because the prosecution presented evidence that three Riverside street gangs had committed the requisite predicate acts, but the crime was alleged to benefit the Mexican Mafia prison gang and the evidence did not show the prison gang’s primary activities” included committing the required enumerated offenses. id: 27734
Updated 2/3/2024Section 186.22, subd.(b)(4)(B) states the punishment for a gang-related home invasion robbery.A conspiracy conviction under Penal Code section 182 may be subject to the alternative penalty provisions of section 186.22, subd. (b)(4)(B), which imposes a prison term of 15 years-to-life for certain gang-related crimes. The trial court did not err by imposing punishment under that provision.id: 26697
Updated 2/2/2024Because defendant’s gang-related conviction was a strike at the time of the conviction it remained a strike regardless of the later amendments to section 186.22.Defendant argued there was insufficient evidence to show that his prior conviction violated Penal Code section 186.22, as amended by AB 333, and it was therefore insufficient to show that it was a strike. However, because the prior was a strike on the date of the conviction, it remained a strike regardless of the amendments to Penal Code section 186.22.id: 27876
Updated 2/2/2024AB 333 does not apply to the findings on serious felony and strike priors.AB 333, which narrowed the applicability of certain punishments for offenses involving a criminal street gang does not require reversal of serious felony and strike priors premised on violations of Penal Code section 186.22.id: 27902
Updated 2/1/2024Reversal of gang enhancement following AB 333 did not require a reversal of the underlying conviction and section 1109 is not retroactive.Assembly Bill 333 is retroactive and required reversal of the gang enhancement in a remand to give the prosecution an opportunity to prove the enhancement under the amended version of Penal Code section 186.22. Defendant was not entitled to a reversal of the underlying conviction, and Penal Code section 1109, which provides for the bifurcation of gang enhancement allegations to minimize the prejudicial impact of gang evidence, does not apply retroactively.id: 27988
Updated 2/1/2024Section 1109, enacted as part of AB 333, which provides for bifurcation of gang enhancements is not retroactive.Assembly Bill 333 is retroactive to cases pending on appeal and required reversal of the Penal Code section 186.22 gang enhancement where the record did not show the predicate offenses were established under the stricter new requirements. However, Penal Code section 1109, which provides for bifurcation of the gang enhancements, is not retroactive as it is not an ameliorative statute.id: 28002
Updated 1/29/2024The trial court did not err in reopening the preliminary hearing to allow evidence on the new requirements for the gang enhancement under the new AB 333. The trial court did not abuse its discretion in reopening the preliminary hearing to allow the prosecution to present evidence regarding the new gang enhancement elements following the enactment of AB 333. The defendant properly used a Penal Code section 995 motion to dismiss to challenge the ruling but the missing evidence supporting the amended elements constituted “minor errors or omission” for which section 995a remand was appropriate.id: 27892
Evidence supported the gang enhancement where members of different subsets of the “Southside” gang stabbed a jail inmate who refused to stab another inmate at the gangs behest. Defendants were convicted of certain offenses after stabbing an inmate at the jail. They argued the evidence was insufficient to support the Penal Code section 186.22, subd.(b) gang enhancement. They first claimed that “Southside” didn’t have unique symbolism, but instead used the Mayan imagery used by the Mexican Mafia. However, the gang statute doesn’t require unique symbolism, just a common identifying symbol. Next, the evidence showed that members of different subsets worked in concert to commit the aggravated assault.id: 24877
Norteños was a criminal gang under section 186.22, and defendant acted to benefit the gang by luring a “cop caller” outside to be beaten by the others.Evidence was sufficient to establish the Norteños was a criminal street gang for purposes of Penal Code section 186.22, and that defendant committed offenses to benefit the gang. The gang had about 500 members and the primary purpose was to make money through criminal acts. Moreover, one defendant lured the victim outside so that he could be ambushed by the other defendants who were upset that the victim had called the police to report a gang crime.id: 25390
There was no need to show a relationship between the subset and Nortenos for purposes of the gang enhancement where the evidence showed defendant conspired to kill the victim to benefit the subset.Defendant argued the evidence was insufficient to support the finding that he committed the conspiracy for the benefit of the gang (pursuant to Penal Code section 186.22, subd. (b)) because the prosecution failed to show a connection between the gang subset (FMT) and the larger umbrella gang (Nortenos). However, there was no need to show a connection where the evidence showed defendant conspired to kill the victim for the benefit of FMT, and defendant admitted membership in the subset gang.id: 25204
Predicate acts committed by two subsets of a larger gang supported the section 186.22, subd.(b) enhancement. In proving the gang enhancement, the prosecution relied on predicate acts committed by members of the Bittys and the Jungle Boys. There was substantial evidence showing that both groups were subsets of the Black P. Stones and so the Penal Code section 186.22, subd.(f) definition of a “criminal street gang” was satisfied. id: 25147
Evidence supported the imposition of the gang enhancement for a non-gang member whose actions furthered the gangs’ primary activities of selling meth. Defendant was convicted of robbery, conspiracy to sell drugs, and murder along with the true findings on the gang enhancement. He argued the evidence did not support the finding on the Penal Code section 186.22, subd.(b) gang enhancement given that he was not a member of a gang. The prosecutor conceded that defendant was not a gang member. However, the evidence showed the gangs’ drug trades benefitted by defendant’s activities, and it was reasonable to infer the crimes were committed to promote or assist in the gangs’ primary activity of selling methamphetamine. id: 24081
Evidence of connections between two subsets and the larger Norteno gang was sufficient to establish the existence of a gang under Prunty.Defendant argued there was insufficient evidence of the existence of a street gang under People v. Prunty (2015) 62 Cal.4th 59. In Prunty, the court found the prosecution failed to show a connection among the subsets it alleged comprised the street gang. The evidence presented here shows the behavior and practices of two subsets that could reasonably lead the jury to conclude the subsets showed an association with each other and the larger Sacramento-area Norteno criminal street gang.id: 24714
The victim was present during the burglary where she saw defendant attempting to enter through the sliding glass door and then fled. A burglary is a violent felony for purposes of the gang enhancement if a victim was inside the residence during the commission of the crime. The victim was in her living room when defendant began yanking on the sliding glass door, and his hand penetrated the portal of the sliding screen door while she was still there. She then fled. Evidence supports the finding that the victim was present during the burglary.id: 24703
Gang expert’s opinion was supported by evidence of the manner in which the burglaries were carried out, and by the defendants active gang membership.Defendants argued the evidence was insufficient to support the gang allegations because the only evidence presented was the conclusory opinion of the prosecution’s gang expert. However, the gang expert’s opinion was supported by evidence concerning the manner in which the crimes were carried out (an act known as “floccin”) where LA crips engage in daytime break-ins in San Fernando Valley suburbs), and the defendants active gang membership.id: 24655
The trial court did not err by failing to instruct that the gang enhancement requires proof the defendants knew they were assisting gang members.The Penal Code section 186.22, subd.(b) gang enhancement does not require a showing that defendants knew they were assisting gang members. It only requires proof of an attempt to promote or assist a crime committed by gang members.id: 24564
Evidence supported the gang enhancement even though one of the defendants was a member of Eastside which the prosecution failed to show was a gang.Three defendants were charged with multiple counts of robbery. Two were members of the Diablos, and the prosecution presented predicate offenses showing the Diablos was a street gang for purposes of the Penal Code section 186.22, subd.(b) enhancement. The third defendant was a member of San Diego Eastside but the prosecution failed to establish that was a gang. Nevertheless, the evidence supported an inference that the three defendants committed the robberies intending to assist Diablos gang members.id: 24565
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
The gang enhancement didn’t require the prosecution to show defendant was a Taliban member, just that the offenses were committed to benefit the gang. Defendant argued the gang expert’s opinions were irrelevant because the prosecution failed to present substantial evidence showing defendant actively participated in the Taliban gang. While there was minimal evidence of defendant’s participation in the Taliban gang, the prosecution was not required to show he was a current member. It only had to show the offenses benefitted the gang.id: 24377
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 gang membership, past crimes and the expert’s opinion were sufficient to prove the gang enhancement even though the present crime lacked traditional indicia of gang activity.Defendant argued the evidence was insufficient to support the Penal Code section 186.22, subd.(b) gang enhancement because it was based solely on his gang membership and past criminal activity. He noted his cohort in the carjacking was not a gang member, neither was the victim and he displayed no gang signs or slogans. However, in addition to the factors noted, the gang expert was given a set of hypothetical facts based on defendant’s crimes and concluded (and explained why) the crimes were committed for the benefit of the gang. id: 21964
The trial court need not instruct the gang enhancement requires a specific intent to benefit the gang. Defendant argued that CALCRIM No. 1401 is flawed for failing to require a defendant charged with the Penal Code section 186.22, subd.(b) gang enhancement need have the specific intent to benefit, further or promote the gang. However, as long as the evidence shows the defendant intended to commit the charged felony with known members of a gang, the jury may fairly infer he had the specific intent to promote or benefit the gang.id: 24152
The trial court abused its discretion by denying the request to strike the gang enhancement based on the mistaken belief that it lacked such authority. The trial court erred by ruling that it lacked authority to dismiss the Penal Code section 186.22, subd.(b)(4) gang allegation. The statute as written, prevented that authority but it was added later. The failure to exercise discretion to strike the allegations based on a lack of knowledge was an abuse of discretion. The conviction was vacated and the matter remanded to allow the trial court to consider defendant’s motion to enter an open plea.id: 23802
Because defendant’s life terms were a result of the three strikes law, the court erred by imposing a 10 year consecutive term for the gang enhancement on each count rather than the 15 year minimum parole eligibility requirement. Defendant was convicted of robbery, aggravated assault and kidnapping, along with allegations of two priors under the three strikes law and a gang enhancement for each offense. He was sentenced to 25 years to life on each offense plus applicable enhancements for a total of 93 years to life. Because the life sentences were a result of the three strikes law, they were life sentences within the meaning of Penal Code section 186.22, subd.(b)(5). Consequently, the court erred by imposing the 10 year gang enhancement under section 186.22, subd.(b)(1)(c), and instead should have imposed the 15 year minimum parole term. id: 23678
Norteños as a whole qualified as a street gang for purposes of the section 186.22, subd.(b) enhancement.Defendant argued there was insufficient evidence to show that the Norteños qualified as a street gang for purposes of the enhancement because it was a larger group consisting of smaller subset gangs. However, the evidence was sufficient to show the Norteños as a whole qualified as a street gang within the meaning of Penal Code section 186.22, even without collaborative activities or collective organizational structure between the various Norteño subsets.id: 23132
The trial court did not err in imposing both the gang and gun use enhancements for the violent felony where the gang enhancement was also supported by the GBI finding.Defendant was convicted of attempted voluntary manslaughter and his sentence was enhanced under both Penal Code sections 186.22, subd.(b)(1)(C) for promoting gang activity and section 12022.5, subd.(a) for firearm use. He argued the court erred by imposing both enhancements because section 1170.1 allows only the one enhancement where gun use provides the basis for more than one. However, the gang enhancement here was also supported by the great bodily injury finding and, therefore the imposition of both enhancements was proper.id: 23109
The trial court erred by staying the imposition of mandatory enhancements.The trial court sentenced defendant to three years for the attempted voluntary manslaughter conviction, 10 years for the gang enhancement and four years for the firearm use enhancement. It then orally stayed imposition of the great bodily injury enhancement. However, it had no legal authority to stay that term as its imposition is mandatory. The matter was remanded to allow the court to strike it under Penal Code section 1385. The court also erred by staying imposition of the gang enhancement of the codefendant, but Penal Code section 186.22, subd.(g) allows the court to strike the enhancement. On remand, the court must impose or strike that term.id: 23110
The trial court did not abuse its discretion by allowing the prosecution to discuss six predicate offenses to establish the gang enhancement. The trial court did not commit error under Evidence Code section 352 by allowing the prosecution to present evidence of six predicate offenses to prove the gang enhancement under Penal Code section 186.22, subd.(b) even though the statute requires only two.id: 23142
The gang murder special circumstance and gang enhancements can apply where liability for first degree murder is based on the theory of provocative act murder. The gang murder special circumstance (Penal Code section 190.2, subd.(a)(22) can apply to provocative act murder. To the extent a defendant with express malice and premeditation proximately causes a death by committing the requisite provocative act, he has intentionally killed the victim despite the intervening use of deadly force by a third party. This is so even though the ultimate victim may be the defendant’s crime partner. Similarly, the gang enhancement under section 186.22, subd.(b) can also apply in the context of provocative act murder. id: 23024
Evidence supported the gang enhancement as defendant could have shot the security guards to enhance the reputation of his gang.Defendant argued the evidence was insufficient to support the Penal Code section 186.22, subd. (b) gang enhancement because the security guards at the apartment complex who were shot, were not gang members. However, the jurors could have found defendant shot the guards to enhance his gang’s reputation and show who was in charge of the complex. id: 22699
The gang enhancement required a 10 year term for each count of assault with a semiautomatic firearm.Defendant was convicted of two counts of assault with a firearm under Penal Code section 245, subd.(b), along with a gang enhancement under section 186.22, subd.(b)(1)(C) for each count. The court erred by sentencing defendant under the enhancement provision to five years on one count and one year and eight months under the other because section 186.22, subd.(b)(1)(C) requires a 10 year sentence for each violent felony.id: 22826
The trial court had no power to refuse to impose the alternate penalty provided by section 186.22, subd.(b)(5) where defendant was convicted of a felony carrying a life term along with a gang enhancement.Defendant was convicted of attempted murder along with a gang enhancement. The trial court imposed seven years-to-life but stayed the gang enhancement. However, the sentence was unauthorized because where gang allegations under Penal Code section 186.22, subd.(b) are found true, and the underlying felony already carries a life sentence, section 186.22, subd.(b)(5) requires that the defendant serve 15 years before being considered for parole. The trial court has no power (including under section 1385) to refuse to impose the alternate penalty provided in section 186.22, subd. (b)(5).id: 22224
Because section 12022.53, subd.(e)(2) specifically authorizes the imposition of both gang enhancements, the trial court erred by staying the section 186.22, subd.(b)(1)(c) enhancement.The trial court erred by staying an enhancement to the assault charge for commission of a violent felony for the benefit of a criminal street gang under Penal Code section 186.22, subd.(b)(1)(c). People v. Rodriguez (2009) 47 Cal.4th 501, did not obligate the trial court to stay the enhancement because section 12022.53, subd.(e)(2) expressly authorized imposition of enhancements under both section 186.22 (b)(1)(c) and section 12022.53, subd.(b). The matter was remanded to give the trial court an opportunity to restructure its sentencing choices.id: 22469
The minors’ signaling their association with the gang was sufficient to support the intent requirement for section 186.22, subd.(d). The minors’ argued the evidence was insufficient to support the Penal Code section 186.22 subd.(d) gang enhancement because they merely intended to stand their ground and did not intend to fight. However, the specific intent element did not depend on whether the minors intended to merely “stand their ground” or fight. It was enough that they signaled their association with the gang as that conduct would strengthen the gang’s violent reputation. Moreover, the statute did not require that the prosecution identify the specific crime the minor’s intended to assist.id: 22069
Gang enhancement applied to defendant who, acting alone, illegally possessed a gun to protect his gang against rival gang members. Defendant argued the evidence did not support the true finding on the section 186.22, subd.(b) gang enhancement because it did not show that he possessed the gun intending to assist in gang conduct. The enhancement can be applied where the defendant acts alone. Here, defendant, an active gang member and a felon, possessed the gun as protection against rival gang members.id: 22388
Evidence supported the gang enhancement where defendant was accompanied by fellow gang members in gang territory and someone called the gang’s name.Defendant argued there was insufficient evidence to support the gang enhancement because the robbery and shooting were spontaneous crimes of opportunity unaccompanied by any intent to benefit the gang. However, the evidence supported the enhancement where defendant was accompanied by fellow gang members, the crime was committed in gang territory and the gang’s name was called out.id: 22029
Evidence supported the imposition of the gang enhancement where defendant drove the car for his fellow gang member who actually committed the robbery.Defendant argued the evidence was insufficient to support the Penal Code section 186.22, subd.(b) gang enhancement. However, the evidence included more than the gang expert’s testimony that defendant’s gang committed robberies to elevate their status in the neighborhood. Defendant admitted to police that he and his companion (an older gang member) agreed to commit the robbery with defendant acting as the driver. He admitted that his companion who had a history of committing crimes with deadly weapons directed the operation. This supported the expert’s opinion that the crime was committed at the direction of the gang. id: 22243
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
Evidence supported the gang enhancement where gang members beat a witness to another assault who was calling police on his cell phone.Defendant and members of his gang severely beat an off-duty police officer who witnessed another assault and was calling 911 on his cell phone. The gang expert testified the witness dissuasion was done in association with the gang and for the benefit of the gang. The evidence supported the gang enhancements under Penal Code sections 186.22, subds. (b)(1) and (b)(4).id: 22198
The second prong of the section 186.22, subd.(b) enhancement encompasses the specific intent to further or assist in any criminal conduct by gang members - including the current offenses - and not merely other criminal conduct by gang members.Defendant argued the second prong of the Penal Code section 186.22, subd.(b) gang enhancement requires evidence that the charged sex offenses were committed with the specific intent to promote, further or assist, other criminal conduct by the gang - i.e., gang related conduct apart from the charged offenses. However, in accordance with the plain language of the enhancement, the scienter element requires only the specific intent to promote, further or assist in any criminal conduct by gang members.id: 21950
Evidence showed that for purposes of gang enhancement, sex crimes committed against a girl by family members who were also gang members, were committed to benefit the gang. There was sufficient evidence to support the first prong of the Penal Code section 186.22, subd.(b) gang enhancement, that the sex offenses against the victim were committed for the benefit of, at the direction of, or in association with, the criminal gang. Defendants not only actively assisted each other in committing the crimes, but their common gang membership ensured they could rely on each other and the internal gang code would ensure no one would cooperate with the police. That the defendants lived together and were related, did not show the conduct was unrelated to the gang. id: 21949
There was no abuse of discretion in denying the motion to bifurcate trial of the gang enhancement since gang evidence would be admitted to show motive even without the enhancement allegation.Defendant argued the trial court abused its discretion by failing to bifurcate the gang enhancement allegation from the trial of the underlying assault. However, there was no abuse of discretion where the court noted that even without the gang enhancement allegation, gang evidence would likely come in to show defendant’s motive for assaulting the victim. id: 21607
Proper gang enhancement for shooting at a vehicle conviction is indeterminate life term under section 186.22, subd.(b)(4). The trial court erred by imposing a 10 year criminal street gang enhancement pursuant to Penal Code section 186.22, subd.(b)(1)(C) for the shooting at an occupied vehicle count because under section 186.22, subd.(b)(4), that offense provides for an indeterminate life term.id: 21362
The trial court improperly imposed the 10 year gang enhancement where the attempted murder did not carry a life term but a life term was imposed for the firearm use enhancement.Penal Code section 186.22, subd.(b)(1)(C) provides for an additional 10 year enhancement when a violent felony is committed to benefit a street gang. If the felony is punishable by life in prison, the court instead applies a 15 year minimum parole eligibility period. Defendant was convicted of a violent felony but was given a 25 years-to-life term for the use of a firearm. (Penal Code section 186.22, subd.(b)(5).) In this case, the parole limitation provision could not be imposed because the felony itself did not provide for a life term.id: 21360
Where defendant conceded that the murder was committed to benefit his gang for purposes of the section 186.22, subd. (b) enhancement, it also showed he intended to promote other criminal activity by the gang.Defendant conceded that he murdered the victim for the benefit of his gang for purposes of the Penal Code section 186.22, subd.(b) gang enhancement, but claimed the evidence was insufficient to show that he intended for the murder to promote other criminal activity by the gang - crimes other than the murder. However, a reasonable jury could infer that defendant specifically intended for the murder to promote his gang’s activities by intimidating neighborhood residents, retaliating against the rival gang for claiming his gang’s territory and solidifying his gang’s control over the alley.id: 21305
Evidence showed defendant’s gang’s “primary activities” of consistent criminal activity supported the section 186.22, subd. (b) enhancements.There was sufficient evidence that defendant’s gang met the definition of a “criminal street gang” as set forth in Penal Code section 186.22, subd.(f). Evidence of the gang’s “primary activities” for purposes of that provision was established by the gang’s 35 year history of criminal conduct, including a “shoot on sight” policy when confronting gang rivals, consistent and repeated crimes, and no evidence that the gang had any purpose other than committing crimes.id: 21030
The court did not err in failing to limit CALCRIM No. 1403 to the gang enhancement where the gang evidence was necessary to explain the motive and witness credibility.Defendant argued the giving of CALCRIM No. 1403 was erroneous since the instruction should have been limited to the gang enhancement, but the court read the optional paragraphs regarding motive and witness credibility. However, the gang evidence was essential to establish a motive for the senseless murder. Moreover, the instruction explained the discrepancies between the witness’s pretrial statement and trial testimony.id: 20939
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
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
Penal Code section 186.22, subd.(d), which provides an alternate penalty provision for gang-related crimes, applies to juveniles as well as adults.Proposition 21 sought to increase punishment of juveniles who commit gang-related crimes. Penal Code section 186.22, subd.(d), which provides an alternate penalty provision when the underlying offense is gang related, applies to juveniles as well as adults. id: 20385
The gang enhancement was justified for the gun possession charge where defendant delivered the gun to a fellow gang member allowing its future use by the gang.Jurors could reasonably conclude defendant’s illegal gun possession was committed for gang purposes pursuant to the Penal Code section 186.22, subd.(b) gang enhancement where, instead of disposing the weapon, he delivered it to a fellow gang member who could preserve it for future gang use.id: 20346
Defendant’s act of flashing gang signs to pedestrians while being chased by police supported the imposition of the gang enhancement.Evidence supported the imposition of the Penal Code section 186.22, subd.(b) gang enhancement. First, defendant admitted to being a member of the Highland Park gang whose primary activities included murder. Next, the fact that defendant flashed gang signs to pedestrians during the high speed police chase showed the act of evasion was gang related.id: 20344
Section 654 did not prevent the imposition of the gang enhancement to each of the three attempted murder convictions.Defendant argued that Penal Code section 654 precluded the imposition of more than one gang enhancement under Penal Code section 186.22, subd.(b). However, defendant attempted three separate murders, each on behalf of a criminal street gang. Multiple enhancements were appropriate. id: 20342
The trial court did not prejudicially err in taking judicial notice of a predicate offense not enumerated in section 186.22, subd.(b) where the qualifying offenses were otherwise established by the charged offenses.Possession of an assault weapon is not an enumerated predicate offense to support a Penal Code section 186.22, subd.(b) gang enhancement. The trial court erred in taking judicial notice of the offense and instructing the jury it could rely on the offense. However, the error was harmless where there were multiple qualifying offenses committed by defendant and the other gang members arising from the charged offenses alone.id: 20471
Evidence of a specific intent to benefit the gang is not required to support the section 186.22, subd.(b) gang enhancement.Evidence supported the imposition of the Penal Code section 186.22, subd.(b) gang enhancements where defendant committed the offenses along with a fellow gang member in a rival gang's territory. A specific intent to benefit the gang was not required.id: 20240
The trial court did not err in admitting evidence of defendant's prior juvenile robbery adjudication to support the gang enhancements where other evidence proved the contested points.The trial court committed harmless error in admitting evidence of the true finding as to defendant's prior juvenile robbery. The evidence was admitted to show Sidro was a criminal gang and that defendant was a gang member for purposes of the Penal Code section 186.22, subd.(b) gang enhancement. However, there was other overwhelming evidence establishing those facts. The error did not require reversal of the gang enhancements where it was not reasonably probable that defendant would have obtained a better result absent the error.id: 20241
Gang enhancement under section 186.22(d) was improper where the underlying gang misconduct was already the basis for the initial criminal contempt charge.The prosecution may not add a gang enhancement under Penal Code section 186.22 onto a criminal contempt charge when the underlying order is based on, and attempts to abate the same gang related conduct. Such dual use of the facts of gang misconduct constitutes impermissible bootstrapping.id: 20108
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
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
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
The court properly struck the section 186.22, subd.(b) gang enhancement after using section 186.22 to find the improper discharge of a weapon under section 246.3 constituted a serious felony in order to impose the section 667, subd.(a) enhancement.Defendant argued the trial court erred in failing to submit to the jury the question whether his current conviction, discharge of a firearm in a grossly negligent manner, is a serious felony for purposes of the two enhancements - the gang enhancement under Penal Code section 186.22, subd.(b), and the section 667, subd.(a) prior felony conviction - each of which requires the current offense be a serious felony. Section 246.3 is not specifically listed as a serious felony, but may qualify under section 1192.7, subd.(c) if defendant personally used a firearm or committed a violation of section 186.22. The jury's true finding on the section 186.22, subd.(b) enhancement was tantamount to a finding that the offense was a serious felony, so the imposition of the section 667, subd.(a) enhancement was proper. However, imposing the section 186.22, subd.(b) enhancement under the circumstances would be an improper bootstrapping, and was not allowed.id: 18297
The trial court erred in imposing consecutive determinate terms for the gang enhancement on the murder convictions.The trial court erred by imposing the consecutive three year Penal Code section 186.22, subd.(b) gang enhancement on the murder conviction. Because first degree murder is a felony punishable by imprisonment in the state prison for life, the determinate terms in section 186.22, subd.(b) could not be imposed.
id: 18495
Evidence showed defendant committed the robbery in association with the gang for purposes of the section 186.22, subd.(b) enhancement where he was accompanied by another gang member and had their tattoos exposed.There was sufficient evidence to show the robbery was committed to assist the gang's criminal conduct for purposes of the Penal Code section 186.22, subd.(b) enhancement. Defendant was an admitted gang member with supporting gang tattoos who committed the crime with Garcia, another gang member. That Garcia was also a relative did not cancel out the gang membership. While defendant claimed there was no intimidation, the tattoos identified the robbers and the victim's subsequent conduct showed they were intimidated. There was evidence to support the enhancement even though there was other conflicting evidence.id: 20047
Prosecution was not required to show which subset of the larger gang in which defendant operated to support gang related enhancement and special circumstance allegation.Defendant was convicted of murder along with a special circumstance finding that the offense was committed for the benefit of the gang under Penal Code section 190.2,
subd.(a)(22) and the gang enhancement under section 186.22, subd.(b). He argued the evidence did not support the gang related finding because the prosecution's expert described the "Norteno"
gang which was really just a geographical identity of a number of local gangs with similar characteristics. However, contrary to defendant's claim, the Nortenos qualified as a gang and the
prosecution was not required to prove the subset of the larger gang in which defendant operated.id: 19402
Gang enhancement does not require the crime be committed with the intent to further "other" criminal conduct by the gang. Defendant argued the court should adopt a Ninth Circuit decision which held that for a gang enhancement under Penal Code section
186.22, subd.(b), it must be shown that the crime was committed with the intent to enable or further "other" criminal conduct by the gang. However, this holding in Garcia v. Carey (9th Cir.
2005) 395 F.3d 1099, misinterprets California law. Section 186.22 does not require that the crime be committed with the intent to further any other gang crime. The evidence was otherwise sufficient to show that he committed the crime for the benefit of a street gang.id: 19263
The specific intent element of the section 186.22, subd.(b) gang enhancement statute does not require intent to further criminal conduct beyond the charged crime.Defendant argued the evidence was insufficient to support the criminal street gang allegation imposed under Penal Code section 186.22, subd.(b)(1), because it did not show the victims were
gang members, that anyone wore gang colors or used gang slogans, and not did show an intent to promote the gang's criminal activity beyond the charged crime. However, the evidence showed
that defendant and the shooter were gang members on a rival gang's turf. Moreover, the specific intent element of the enhancement which requires a showing of "specific intent to promote, further or assist in any criminal conduct by gang members," does not require intent to further criminal conduct beyond the charged crime.id: 19094
Assault with a firearm is a predicate offense under the section 186.22, subd.(b) gang enhancement for purposes of proving a pattern of criminal gang activity.The Penal Code section 186.22, subd.(b)(1) street gang enhancement lists specified predicate offenses including assault with a deadly weapon, and assault by means of force likely to produce great bodily injury, both of which fall under section 245, subd.(a)(1). While not specifically listed, assault with a firearm (a particularly dangerous form of assault with a deadly weapon) under section 245, subd.(a)(2), is also a predicate offense.id: 18840
Section 654 did not prohibit sentencing on the gang enhancement on remand after the enhancement was bootstrapped into punishment under section 186.22, subd.(b)(1)(B).The trial court did not prejudicially err when it found defendant's current assault offense to be a serious felony within the meaning of Penal Code section 1192.7, subd.(c), because the jury found true the gang enhancement allegation against him. However, remand is required because it was improper to "bootstrap" the finding on the section 186.22, subd.(b) gang enhancement under subdivision (b)(1)(B) of that section. Contrary to defendant's claim, section 654 does not prohibit punishment under the gang enhancement. Defendant was not being punished twice for the same conduct, but rather, because he was a recidivist offender whose conduct during the current offense fell within the scope of the gang enhancement.id: 18756
Prop 21 addition to serious felony list applies to any felony offense committed to benefit a street gang under section 186.22, subd.(b)(1).Penal Code section 1192.7, subd.(c)(28) (added by Prop 21) which adds to the list of serious felonies "any felony offenses, which would also constitute a felony violation of section 186.22" does not apply only to the substantive offense of active participation in a criminal street gang defined in section 186.22, subd.(a). It also applies to any felony offense committed for the benefit of a criminal street gang, as defined in section 186.22, subd. (b)(1).id: 18179
Three violent assaults (including the present attack) in less than 3 months constituted sufficient evidence that the commission of such predicate crimes was a primary activity of defendant's gang.Defendant was convicted of attempted murder along with an enhancement finding that the crime was committed for the benefit of the street gang under Penal Code section 186.22, subd. (b). He argued the evidence was insufficient to establish that his gang was a "criminal street gang" because the prosecution did not establish that the commission of a predicate crime was one of the gang's primary activities as required under section 186.22, subd.(f). He claimed there was no evidence that his gang engaged in criminal activity that was either consistent or repeated. However, three violent assaults by defendant's gang (including the attack on the victim) over less than a 3 month period constituted sufficient evidence that the commission of such predicate crimes was one of the "primary activities" of the defendant's gang.id: 18123
The trial court did not commit instructional error by including attempted murder as a predicate crime that the jury could consider for the "primary activities" prong of the gang enhancement.Defendant argued the trial court erred in its inclusion in the instructions of attempted murder as a predicate crime for the jury's determination of the "primary activities" prong of the Penal Code section 186.22, subd.(b) enhancement. However, the attempted but unsuccessful commission of any of the 25 crimes enumerated under subdivision (e) would constitute a predicate crime to show a pattern of criminal activity under that subdivision.id: 18124
The trial court did not err in refusing to bifurcate trial of the gang enhancement from trial of the charged offense and, absent a defense request, no limiting instruction was required.To establish a criminal street gang enhancement under Penal Code section 186.22, sub.(b)(1), the prosecution must prove facts in addition to the elements of the crime. Defendant argued that, as in the case of a prior conviction, the trial court should have bifurcated the trial of the gang enhancement from the trial of the charged offense. However, the court did not abuse its discretion in refusing to bifurcate the trial of the gang enhancement from the trial of the charged offense since much of the gang evidence was relevant to the charged offense and defendant himself injected his gang status into the crime. Moreover, absent a defense request, the trial court was not required to give a limiting instruction on the evidence used to support the gang enhancement.id: 18029
Expert's testimony that several gang members acting together, would be acting to benefit the gang was sufficient to support the gang enhancement.The gang expert testified that a gang member could choose to commit a crime with other gang members who would provide support, and this would enhance the gang's reputation. Defendant argued the evidence was insufficient to support the gang enhancement because it did not show this particular crime was committed for the benefit of the gang. However, there was no evidence the gang members committed the crime as a frolic unrelated to the gang. The jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members.id: 17604
The court erred in imposing the consecutive three-year sentence for the gang enhancement on the murder conviction instead of the minimum parole eligibility date of 15 years.When a defendant is convicted of a felony punishment by life in prison, an additional determinate term cannot be imposed as a gang enhancement under Penal Code section 186.22, subd.(b)(1). Instead, the defendant is subject to a minimum term of 15 years under former subd.(b)(4). id: 17528
15-year minimum parole eligibility date mandated by section 186.22, (b)(5) applies only where the felony by it own terms provides for a life sentence.Penal Code section 186.22, subd.(b)(5) provides that a defendant who commits "a felony punishable by imprisonment in the state prison for life" for the benefit of a street gang "shall not be paroled until a minimum of 15 calendar years have been served." The provision only applies where the felony, by its own terms, provides for a life sentence, and not where a felony, together with a section 12022.53(d) enhancement, results in a life term.id: 17484
Gang allegation under section 186.22, subd.(b)(1) may not be appended to counts carrying a life term.The trial court sentenced defendant to prison for 15 years-to-life for the second degree murder conviction, and also imposed a 10-year consecutive term for the Penal Code section 186.22, subd.(b)(1) gang allegation. However, the 10 year term was stricken since a gang enhancement under section 186.22, subd.(b)(1) may not be appended to counts carry a life term.id: 17408
Gang enhancement does not require proof that the two persons who committed the predicate offenses were gang members when those crimes were committed.Penal Code section 186.22, subd.(e) requires that the two predicate offenses necessary for the gang enhancement be committed by "two or more persons." However, the prosecutor has no duty to prove that the two or more persons perpetrating the predicate offenses were gang members when the enumerated crimes were committed.id: 17119
Evidence showed robberies were committed to benefit the street gang for purposes of the section 186.22, subd.(b) enhancement where a predicate offense was established by a gang expert and a minute order, and it was further shown that the gang's primary activities were enumerated offenses.Evidence was sufficient to prove the robberies were undertaken for the benefit of a criminal street gang pursuant to Penal Code section 186.22, subd.(b)(1). First, the evidence proved a pattern of gang activity. A certified minute order documenting a third gang member's conviction for a predicate offense was not inadmissable hearsay. Moreover, the minute order, coupled with a gang expert's testimony, was sufficient to establish a predicate offense. Finally, evidence supported the jury's finding that the gang's primary activities were statutorily enumerated offenses within the meaning of section 186.22, subd.(f). While the expert stated the gang's primary activity was "putting fear in the neighborhood" which was not an enumerated offense, it was also found that the gang regularly engaged in robbery, assault and drug sales.id: 16775
The 10-year gang enhancement in section 186.22, subd.(b)(1) may not be applied to an attempted robbery conviction because it is not a violent felony under section 667.5.Defendant was convicted of robbery and attempted robbery. The trial court found that on the attempted robbery count a ten year enhancement could be imposed under section 186.22, subd.(b)(1). The court then reduced the term under section 1170.1, subd.(a) to 3 years and 4 months. However, the 10-year enhancement in section 186.22, subd.(b)(1) may not apply to an attempted robbery conviction because that offense is not a violent felony under section 667.5, subd.(c). Attempted robbery is a serious felony under section 1192.7, subd.(c). Therefore, on remand, defendant will be subject to a 5 year term for the section 186.22, subd.(b)(1) gang enhancement which must be reduced under section 1170.1, subd.(a).id: 16519
Officer's testimony and a case file were sufficient to prove a "pattern of gang activity" for purposes of the section 186.22, subd.(b) enhancement.Defendant argued there was insufficient evidence to support the gang enhancement allegation under Penal Code section 186.22, subd.(b)(1), because there was no documentary evidence to show "a pattern of gang activity." However, the pattern of gang activity was established by the testimony of two gang experts as well as a case file which established the predicate offense.id: 16521
Court did not err in imposing consecutive terms for the section 186.22 and 12022.53 enhancements.Defendant was convicted of attempted premeditated murder which carries a life term under Penal Code section 664, subd.(a). The court also found true the allegation that the crime was committed for the benefit of a gang under section 186.22. The court then set the term at life with a minimum of parole eligibility of 15 years. Thereafter, the court added a 25 years-to-life consecutive term for the section 12022.53, subd.(d) enhancement. The total term was 40 years-to-life. Contrary to defendant's claim, the court did not err by imposing consecutive terms for the gang and firearm use enhancements.id: 16523
Evidence of current offenses can be used to establish the primary activities element of the gang enhancement.Defendant argued the prosecution could not use evidence of the current offenses to establish the primary activities element of the street gang enhancement under Penal Code section 186.22, subdivision (b). However, either 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.id: 16229
Evidence that defendant's gang planned to frame the Crips for a robbery in retaliation for an earlier incident supported the street gang enhancement.Evidence revealed the defendants were members of the ESL gang. Defendant's admissions documented a plan to frame the Crips for a robbery in retaliation for an earlier incident involving the same gangs. Defendant wrote Crip gang graffiti on the walls to incriminate their rivals. Evidence was sufficient to show the murder and robbery were committed for the benefit of a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b)(1).id: 16230
For a defendant serving a life sentence the Penal Code section 186.22 enhancement is not an additional term, but an extended parole eligibility date.Penal Code section 186.22, subdivision (b)(4) does not authorize the imposition of a three-year sentence enhancement when a prisoner is serving a life sentence. In such a case, the street gang enhancement is not an additional determinate term, but an extended parole eligibility date.id: 16231
Gang activity for enhancement can be proven with proof of another offense committed on the same occasion by a fellow gang member.A pattern of criminal gang activity for purposes of the criminal street gang enhancement under Penal Code section 186.22 can be proven with evidence pertaining to the charged offense and one other offense committed on a prior occasion by the defendant's fellow gang member. The requisite pattern can also be established by evidence of the offense with which the defendant is charged and proof of another offense committed on the same occasion by a fellow gang member.id: 16232
The trial court did not abuse its discretion in permitting expert opinion, based in large part on hearsay, that members of different gangs killed the victim for the benefit of the gang.Defendant and nine others were charged with murder, and a street gang enhancement under Penal code section 186.22 was alleged. The trial court did not abuse its discretion in permitting a police officer to give an expert opinion that the charged defendants who represented seven different Norteno gangs, could have been acting for the benefit of the gang. Such opinion was not tantamount to a true finding on the enhancement where other elements to the allegation had to be proved. Moreover, the court did not abuse its discretion in permitting the officer to relate the large amount of detail upon which he relied including portions of letters written to or sent by gang members.id: 16038
Section 186.22, subdivision (d) is a penalty provision that applies to all gang-related offenses.Penal Code section 186.22, subdivision (d), describes criminal penalties for any person who is convicted of an offense punishable as a felony or misdemeanor, which is committed for the benefit of a street gang. Contrary to defendant's argument, the provision applies to all gang-related offenses, not just wobblers. Also, the statute does not define a crime, but rather sets forth a penalty provision. Because it was charged as a substantive offense, the demurrer to the charge was sustained with leave to amend.id: 15094
Evidence of gang membership in 1981 was relevant at penalty phase to rebut defendant's statement that he ceased gang affiliations in 1980.Defendant argued the court erred in admitting evidence of his gang membership at the penalty phase. Defendant testified he ceased being a gang member in 1980, yet police seized gang paraphernalia from his bedroom in 1981, tending to prove his gang membership continued past that date. The evidence was therefore relevant to rebut defense penalty evidence.id: 13905
For purposes of gang enhancement retaliation killing for another gang benefitted defendant's gang by enhancing its respect.Defendant was convicted of murder and a criminal street gang enhancement under Penal Code section 186.22 was found true. Contrary to defendant's claim the charged offense can be considered as one of the predicate offenses establishing a pattern of gang activity. Moreover, he claimed the 1991 homicide was not shown to have been committed to benefit his gang (Southside). However, a qualified expert testified the participation of a Southside gang member in a retaliation killing to benefit another gang would benefit Southside by enhancing its respect. It was for the jury to assess the weight of that testimony.id: 13906
Gang enhancement does not require gang's actions pose a threat of continued criminal activity.Defendant was convicted of murder and the criminal street gang enhancement under Penal Code section 186.22 was found true. He argued the instruction defining pattern of criminal gang activity was incomplete and should have included a requirement that the gang's criminal actions amount to or pose a threat of continued criminal activity. However, section 186.22 does not require a threat of continued criminal activity.id: 13908
Imposition of two separate criminal street gang enhancements did not violate section 654.Defendant argued the imposition of two criminal street gang enhancements under Penal Code section 186.22, subdivision (b)(1) were improper and in violation of section 654. However, the robberies were committed on separate occasions against separate victims, and were not subject to section 654. Applying the street gang enhancement to both robberies holds defendants accountable for ongoing gang activity and is consistent with the legislative intent of section 186.22, subdivision (b)(1).id: 13752
About Pat Ford
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