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85.2 Criminal Street Gangs: Miscellaneous Issues

    85.2.1 Criminal Street Gangs: Predicate Offenses Must Be Proven Beyond A Reasonable Doubt
    85.2.2 Criminal Street Gangs: Juror Unanimity As To Predicate Offenses
    85.2.3 Criminal Street Gangs: Duty To Define "Actively Participated"
    85.2.4 Gang Activity/Pattern of Activity
    85.2.5 Gang Offense: Pattern Of Criminal Activity Must Occur Prior To The Charged Offense
    85.2.6 Criminal Street Gangs: Expert's Testimony Must Be Based On Personal Knowledge Or Actual Evidence
    85.2.7 Admissibility Of Gang Affiliation Evidence

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PRACTICE NOTE: The elements necessary to establish a "criminal street gang" and a "pattern of criminal gang activity" include proof that at least 2 of the statutorily specified offenses were committed. While it is not necessary to establish conviction for those offenses, the prosecution must prove them beyond a reasonable doubt as with any other element of a criminal offense. (See In re Leland D. (CA 1990) 223 CA3d 251, 258-59 [272 CR 709].) An arrest is insufficient to meet this burden as it is in any other case. (Ibid; see also In re Lincoln J. (CA 1990) 223 CA3d 322, 327-31 [272 CR 852]; In re Nathaniel C. (CA 1991) 228 CA3d 990, 1000-04 [279 CR 236] [hearsay incompetent to establish specific criminal activity].)

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    See FORECITE National™ 85.3.6 [Criminal Street Gangs: Defense Theory That Federal Constitution Requires Unanimity As To Predicate Offenses].

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RATIONALE: If the gang statute requires that the defendant "actively participated" in gang activities the jury may not understand the term actively participated unless it is defined.

POINTS AND AUTHORITIES: In order to support a conviction of violating the California criminal street gang statute (Penal Code § 186.22(a)) there must be active participation in a criminal street gang. People v. Green (CA 1991) 227 CA3d 692, 699-700 [278 CR 140] stated that "active" is a commonly understood term. However, under closer examination, Green does not support this conclusion. In Green, the court upheld the California statute against a challenge of unconstitutional vagueness. The defendant in Green argued that the term "actively participates" was "uncertain." (Green, supra, 227 CA3d at 699.) In order to uphold the statute, the court construed that term in accordance with language found in Scales v. U.S. (1961) 367 US 203, 233 [81 SCt 1469; 6 LEd2d 782].

    In Scales, the Supreme Court considered the constitutionality of the Smith Act (18 USC 2385) which, in part, criminalized membership in any organization advocating the violent overthrow of the federal government. The Supreme Court approved the trial court's instruction to the jury that in order to convict Scales it must find that he was an "active" member of the Communist Party and "not merely 'a nominal, passive, inactive or purely technical'" one. (Id. at p. 220.) The court held the instruction was adequate because "[t]he distinction between 'active' and 'nominal' membership is well understood in common parlance [citations] ..." (Id. at p. 223.) Notably, the Scales court did not suggest that the distinction between the terms "active" and "current" was well understood in common parlance.

    Drawing upon the instruction given by the trial court in Scales, the Green court concluded that in order to actively participate in a criminal street gang, a defendant's relationship must be "... (1) more than nominal, passive, inactive or purely technical, and (2) the person must devote all, or a substantial part of his time and efforts to the criminal street gang." (Green, 227 CA3d at 700.) Hence, while the court in Green said that "active" was a term understood in common parlance, it went on to adopt a construction of "active" that involves a great deal more than the common understanding of the term. The court set forth specific elements that must be proven if the statute is to survive constitutional scrutiny. Thus, under Green the court should instruct the jury as to this constitutionally required definition of "active."

    Moreover, even if not required sua sponte, instruction on the required elements should be given upon request.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

    To actively participate in a criminal street gang a person must:

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    See FORECITE National™ 85.3.3 [Criminal Street Gangs: Lack Of Pattern Of Criminal Activity As Defense Theory].

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    85.2.5    Gang Offense: Pattern Of Criminal Activity Must Occur Prior To The Charged Offense

PRACTICE NOTE: Although not expressly required in the California criminal street gang statute (Penal Code § 186.22(e)), some cases suggest that the two predicate offenses must have been committed prior to the charged offense. (See People v. Gamez (CA 1991) 235 CA3d 957, 976 [286 CR 9936]; In re Nathaniel C. (CA 1991) 228 CA3d 990, 1002 [279 CR 236].)

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    85.2.6    Criminal Street Gangs: Expert's Testimony Must Be Based On Personal Knowledge Or Actual Evidence

PRACTICE NOTE: People v. Gardeley (CA 1996) 14 C4th 605, 619-20 [59 CR2d 356] held that a gang expert may reveal information on which he relied in forming his expert opinion, including hearsay. (See also People v. Valdez (CA 1997) 58 CA4th 494 [68 CR2d 135].) The jury may rely on the hearsay only for the purpose of evaluating the expert testimony. Such testimony is not admissible to prove the defendant's guilt of the predicate acts required to be shown under the definition of a criminal street gang. The prosecution must still establish by independent evidence the additional statutory requirement that the gang's members "individually or collectively engage in or have engaged in a pattern of criminal gang activity." (See also Green v. State (GA 1996) 466 SE2d 577, 580 [there could be no conviction for "street gang terrorism" absent proof of a pattern of criminal gang activity. It was not enough for a police officer to testify, based on information from other investigators, that two gang-related homicides in town were attributed to a particular gang or that several crimes were gang-related, but without specifying the dates of the crimes].)

    Hence, when hearsay evidence of the incident is presented as a basis for the expert's opinion, it should be made clear to the jury that such hearsay is not admitted for the truth of the matter asserted and cannot be relied upon to convict the defendant of a gang participation substantive offense and/or a gang-related enhancement. (See FORECITE National™ 29.2.5 [Limiting Jury’s Consideration Of Facts Admitted Into Evidence As Basis For Expert’s Opinion].)

    See also FORECITE National™ Chapter 29 [Expert Opinion Testimony].

    See also generally, FORECITE National™ 305.5.8 [Expert Testimony/Scientific Evidence].

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    85.2.7    Admissibility Of Gang Affiliation Evidence

PRACTICE NOTE: Gang affiliation and activity is admissible when relevant to an issue of motive or intent. (People v. Funes (CA 1994) 23 CA4th 1506, 1518 [28 CR2d 758]; see also U.S. v. Hankey (9th Cir. 2000) 203 F3d 1160, 1167 [gang expert's testimony was admissible under Kumho Tire Co. Ltd. v. Carmichael (1999) 526 US 137, 148 [119 SCt 1167; 143 LEd2d 238] to show bias of witness].)

    Due to the high potential of prejudice, the California Supreme Court has condemned the introduction of "evidence of gang membership if only tangentially relevant, given its highly inflammatory impact." (People v. Cox (CA 1991) 53 C3d 618, 660 [280 CR 692].) Evidence of gang membership has been admitted to prove bias, provided it is not cumulative to other properly admitted and less inflammatory evidence. (See People v. Cardenas (CA 1982) 31 C3d 897, 904-905 [184 CR 165]; see also People v. Ruiz (CA 1998) 62 CA4th 234, 240 [72 CR2d 572].)

    However, when other evidence has established a relationship between the witness and the defendant, common membership evidence is cumulative and, if prejudicial, inadmissible. (People v. Cardenas, supra, 31 C3d at 904; People v. Munoz (CA 1984) 157 CA3d 999, 1012-13 [204 CR 271]; People v. Maestas (CA 1993) 20 CA4th 1482, 1494 [25 CR2d 644].)