Gangs

Definitions

Gang

PC186.22(f): As used in this chapter, “criminal street gang” means an ongoing, organized association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in subdivision (e), having a common name or common identifying sign or symbol, and whose members collectively engage in, or have engaged in, a pattern of criminal gang activity.

1) An ongoing, organized association or group or three or more people, whether formal or informal. But not a labor union. (PC186.23)

2) Common name or common identifying sign or symbol.

Name

People v. Jones (2003) 30 Cal.4th 1084

Nortenos

In re Jose R. (2003) 106 Cal.App.4th 458

People v. Ortega (2006) 145 Cal.App.4th 1344

People v. Prunty (2015) 62 Cal.4th 59

Subsets must be united by more than common names, signs or symbols, enemies or loose philosophies.

• People v Miranda (2016) 2 Cal.App.5th 829; People v. Ewing (2016) 244 Cal.App.4th 359; People v. Lara (2017) 9 Cal.App.5th 296; People v. Garcia (2017) 9 Cal.App.5th 364; People v. Resendez (2017) 13 Cal.App.5th 181

• People v. Ramirez (2016) 244 Cal.App.4th 800; People v. Nicholes (2016) 246 Cal.App.4th 836; People v. Cornejo (2016) 3 Cal.App.5th 36; People v. Williams (2008) 167 Cal.App.4th 983

• People did not have to prove links between D's gang subset and Sureños, where gang D associated with, the gang committing the predicate offenses, and the gang re the primary activity evidence all pertained to the broader Sureño gang. People v. Vasquez (2022) 74 Cal.App.5th 1021

Primary Activity

“…commission of one or more of the statutorily enumerated crimes is one of the group's ‘chief’ or ‘principal’ occupations.” People v. Sengpadychith (2001) 26 Cal.4th 316, 323

• “A” primary activity must be one of dirty 26

Occasional misconduct by members of an organization does not satisfy the primary activities element, e.g. Los Angeles Police Department and environmental activists. People v. Sengpadychith (2001) 26 Cal.4th 316

• 186.22(e)(1)(a)-(z)

PC 245 ‐‐ ADW/Ass. w/ Firearm/GBI likely • PC 211 – Robbery • PC 187 et seq. – Murder/Manslaughter • H&S 11378, 11379, 11351, 11352, 11351.5, 11379.6 – Poss for Sale/Sale/Transport/Mfg CS • PC 246 – Shooting at dwelling/MV. • PC 26100 – Discharging or permitting the discharge of a firearm from aMV • PC 450 et seq. – Arson. • PC 136.1 – Wit Intimidation • PC 487(a) and (c) – GT, GT Person • PC 487(d) – GT Gun/Auto • PC 459 – Burglary. • PC 261 – Rape. • PC 186.10 –Money Laundering. • PC 207 ‐‐ Kidnapping • PC 203 – Mayhem. • PC 205 – Agg. Mayhem. • PC 206 – Torture. • PC 518 & 520 – Extortion. • PC 215 – Carjacking. • PC 27500 – Transfer of firearm. • PC 29610 – Possession of a concealed firearm. • PC 422 – Criminal Threats. • VC 10851 – Theft/driving of a vehicle. • PC 29800 – Felon possess firearm • PC 25400 – Carrying a concealed firearm. • PC 25850

Proof • Expert testimony • Current crimes* • After current offense? • “the group's members consistently and repeatedly have committed criminal activity listed in the gang statute.” People v. Garcia and Austin (2020) 46 Cal.App.5th 123 (citing Sengpadychith) • Past crimes • People v. Vy (2004) 122 Cal.App.4th 1209 cf. People v. Perez (2004) 118 Cal.App.4th 151

Pattern offense / Predicate offense

Members must have engaged in pattern

Commission, attempt, solicitation, conspiracy, juvenile petition or conviction • 2 ormore of Dirty 26 • One after 09/88 • Past crimes In re Jose T. (1991) 230 Cal.App.3d 1455

Timing • Within 3 years of current offense • Last within 3 years of prior • People v. Fiu (2008) 165 Cal.App.4th 360 • Cannot happen after filing • People v. Duran (2002) 97 Cal.App.4th 1448 fn 5 • Date of offense NOT conviction

• Committed on separate occasions, or by two or more members • People v. Delgado (2022) 74 Cal.App.5th 1067; People v. Lopez (2021) 73 Cal.App.5th 327 • Defendant convicted of various crimes with gang and other enhancements. Gang enhancement affirmed, disagreeing with Delgado. Sufficient for predicates that (1) two gang members separately committed crimes on different occasions or (2) two gang members committed a crime together on a single occasion. People v. Clark (2022) 81 Cal.App.5th 133 • See also People v. Boukes (2022) 83 Cal.App.5th 937

Common Benefit • Must commonly benefit a criminal street gang • PC186.22(g) • The common benefit must be more than reputational. • Financial gain or motivation, • Retaliation, • Targeting a perceived or actual gang rival, or • Intimidation or silencing of a potential current or previous witness or informant • OR……?

OLD -- need not be gang related • People v. Gardeley (1996) 14 Cal.4th 605 • Need not prove were gang members at time* • People v. Augborne (2002) 104 Cal.App.4th 362 • No limit on number • People v. Hill (2011) 191 Cal.App.4th 1506; People v. Navarro (2021) 12 Cal.5th 285 • No jury unanimity • People v. Funes (1994) 23 Cal.App.4th 1506

Yes – Defendant’s priors People v. Tran (2011) 51 Cal.4th 1040

• Yes – Prosecution before conviction. People v. Lara (2017) 9 Cal.App.5th 296; In re I.M. (2005) 125 Cal.App.4th 1195

• NO – Arrests without Conviction People v. Williams (2009) 170 Cal.App.4th 587

• NO – Acquittals People v. Garcia (2014) 224 Cal.App.4th 519

Proof • Certified Priors • Sustained Juv. Petitions • Judicial Notice • Testimony of crimes • Expert opinion w/ other proof* • In re I.M. (2005) 125 Cal.App.4th 1195

PC186.22(e) As used in this chapter, “pattern of criminal gang activity” means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of, two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter, and the last of those offenses occurred within three years of the prior offense and within three years of the date the current offense is alleged to have been committed, the offenses were committed on separate occasions or by two or more members, the offenses commonly benefited a criminal street gang, and the common benefit from the offenses is more than reputational:

Pattern offenses/Predicate offenses

What can be used as a pattern offense/predicate offense

NOT Pattern Offenses • Battery with Serious Bodily Injury People v. Bragg (2008) 161 CA4th 1385 • AssaultWeapon Possession People v. Fiu (2008) 165 Cal.App.4th 360 • Simple Assault People v. Williams (2009) 170 Cal.App.4th 587

Proving up pattern offenses/predicate offenses

Pattern Crime Proof Practical Guide • Pattern of Criminal Activity Offenses are not listed in the charging document. • Prepare a Pattern Schedule before trial. • Use as many Pattern Offenses as possible. • Use the Defendant’s Pattern Offenses. • Pattern reports are necessary for discovery. • A limiting jury instruction is required if defense requests. See CALJIC 17.24.3 / CALCRILM 1403; People v. Rivas (2013) 214 Cal.App.4th 1410

(b) enhancement

Prison, not 1170(h), under PC1170(h)(3)/PC1192.7(c)(28)

(b)(1)(A) +2-3-4 and becomes serious (b)(1)(B) serious felony gets +5 years (b)(1)(C) violent felony gets +10 years (b)(4)(B) shooting at house (3-5-7) becomes 15-to-life (b)(4)(B) PC215 (3-5-9) becomes 15-to-life (b)(4)(B) PC213(a)(1)(A) (3-6-9) becomes 15-to-life (b)(4)(B) shooting from car (5-6-10) becomes 15-to-life (b)(4)(C) 136.1 (16-2-3) becomes 7-to-life (b)(4)(C) extortion (2-3-4) becomes 7-to-life (b)(5) 7-to-life enhancements become 15-to-life