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85.3 Criminal Street Gangs: Defenses And Defense Theories

    85.3.1 Criminal Street Gangs: Defense Theory That Predicate Offenses Must Be Gang Related
    85.3.2 Criminal Street Gangs: Defense Theory That Conduct Was Not Felonious
    85.3.3 Criminal Street Gangs: Lack Of Pattern Of Criminal Activity As Defense Theory
    85.3.4 Gangs: Defense Theory That Homicide Is Not Necessarily A Foreseeable Risk Of Gang Activity
    85.3.5 "Primary Activity" Of Gang: Defense Theory That Current Offenses Are Not Sufficient
    85.3.6 Criminal Street Gangs: Defense Theory That Federal Constitution Requires Unanimity As To Predicate Offenses
    85.3.7 Criminal Street Gangs: Additional Defenses And Defense Theories
    85.3.8 Criminal Street Gangs Liability Based On Giving Advice: First Amendment Defense
    85.3.9 Criminal Street Gangs: Gang Member Registration Law Unconstitutionally Vague
    85.3.10 Gang Evidence Improper Where Future Dangerousness Not Raised

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PRACTICE NOTE: People v. Gamez (CA 1991) 235 CA3d 957, 977-78 [286 CR 894], explicitly holds that the other offenses (the "predicate crimes") must themselves be "gang related." "To allow otherwise would be to punish defendant for the unrelated actions of people with whom he associated." (Emphasis in original) The cases do not articulate a test for measuring whether predicate crimes were "gang related." Though the term "purposeful gang activity" appears in In re Lincoln J. (CA 1990) 223 CA3d 322, 330 [272 CR 852], a later decision, In re Nathaniel C. (CA 1991) 228 CA3d 990, 1004 [279 CR 236], declared that this language was not intended to establish a prerequisite. According to Nathaniel C., intra-gang violence also qualifies. The more recent opinion in Gamez simply states that the predicate crimes must be "gang related," but does not elaborate on the meaning of that requirement.

    People v. Gardeley (CA 1996) 14 C4th 605, 610 [59 CR2d 356] disapproved People v. Gamez (CA 1991) 235 CA3d 957, 977-78 [286 CR 894] and held that the crimes that make up the pattern of criminal street gang activity do not have to be "gang-related."

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PRACTICE NOTE: People v. Green (CA 1991) 227 CA3d 692, 703-04 [278 CR 140] concluded that the term "felonious criminal conduct" as used in the California criminal street gang statute (Penal Code § 186.22) "covers only conduct which is clearly felonious, i.e., conduct which amounts to the commission of an offense punishable by imprisonment in state prison." (Green, 227 CA3d at 704.) Therefore, the jury should be instructed to make such a finding.

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PRACTICE NOTE: See e.g., People v. Olguin (CA 1994) 31 CA4th 1355, 1383 [37 CR2d 596]; see also Green v. State (GA 1996) 466 SE2d 577, 580 [266 Ga. 237] [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].

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    85.3.4    Gangs: Defense Theory That Homicide Is Not Necessarily A Foreseeable Risk Of Gang Activity

PRACTICE NOTE: In People v. Godinez (CA 1992) 2 CA4th 492, 502-503, fn 6 [3 CR2d 325], the court rejected the prosecution's argument that homicide is as a matter of law a foreseeable consequence of a gang attack.

    See also FORECITE National™ 65.2.4 [Homicide Is Not A Natural And Probable Consequence Of A Gang Attack].

    See also FORECITE National™ 65.2.10 [Natural and Probable Consequence: Requirement Of "Close Connection" Between Target Crime And Charged Crime].

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    85.3.5    "Primary Activity" Of Gang: Defense Theory That Current Offenses Are Not Sufficient

PRACTICE NOTE: In re Elodio O. (CA 1997) 56 CA4th 1175, 1180-81 [66 CR2d 95] relied upon People v. Gardeley (CA 1996) 14 C4th 605, 620 [59 CR2d 356] and People v. Gamez (CA 1991) 235 CA3d 957, 970-72 [286 CR 894] to hold that the "primary activity" element of the California criminal street gang statute (Penal Code § 186.22) requires evidence of "past activity, not current offenses." The court concluded that "the provision of the California statute that a criminal street gang have as one of its primary activities the commission of certain enumerated offenses, requires proof of such crimes by evidence other than the current crimes." (Elodio O., 56 CA4th at 1177; but see People v. Galvan (CA 1998) 68 CA4th 1135 [80 CR2d 853] [evidence of current charged offense may constitute evidence of the primary activities of a criminal street gang].)

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    85.3.6    Criminal Street Gangs: Defense Theory That Federal Constitution Requires Unanimity As To Predicate Offenses

    See FORECITE National™ 58.2 [Juror Unanimity As To Predicate Crimes].

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PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)

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PRACTICE NOTE:  In McCoy v. Stewart (9th Cir. 2002) 282 F3d 626 the defendant, a former member of a California street gang, was convicted of participating in a criminal street gang in violation of an Arizona statute (A.R.S. § 13-2308) under the theory that he had advised members of another gang on how to operate their gang.  Even though he had offered advice on how to best organize the group, continue their initiation practice and increase their "tagging" [graffiti activity], there was no evidence that this advice was acted upon.  Reversing the conviction, the Ninth Circuit court cited the district court's observation in holding that the conviction violated the First Amendment: "[w]hile it may have been incredibly stupid and short-sighted for [McCoy] to have offered his opinions and experiences to a group of teenaged gangster wannabe's, the Constitution protects even stupid speech.  [Citation.]"  (McCoy, 282 F3d at 632.)

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PRACTICE NOTE: People v. Sanchez (CA 2003) 105 CA4th 1240 [130 CR2d 219] held that the California street gang registration law (PC 186.30 et seq.), requiring defendants found to have committed gang related crimes to provide "any information" demanded by authorities with whom they must register, is unconstitutionally vague. In Sanchez the defendant challenged a court order requiring the defendant to list places he frequented. The court held that, although a list of places a defendant frequents would assist the agencies in finding the defendant, the order did not give the defendant sufficient notice of how often he must visit a place before he must include it on the list.

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