Gang Expert Testimony – Part II

1. Substantive Offense Provision – Pen C §186.22 (a)

Under the substantive offense provision, “any person who actively participates in a criminal street gang with knowledge that its members are engage[d] in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished” by imprisonment in the county jail or state prison. Pen C §186.22 (a); People v Castenada (200) 23 C4th 743, 97 CR2d 906. See also CALCRIM 1400. Actual knowledge is required. People v Green (1991) 227 CA3d 692, 702, 278 CR 140, overruled on the grounds in Castenada 23 C4th at 752. This section applies to both direct perpetrators of the underlying offense and to aiders and abettors. People v Ngoun (2001) 88 CA4th 432, 437, 105 CR2d 837 (rejecting language from Castenada suggesting that only aiders and abettors can be liable under 186.22(a); People v Salcido (2207) 149 CA4th 356, 367, 56 CR3d 912 (same). On Salcido’s recommendation, CALCRIM 1400, which defines the elements of §186.22(a), now reads so that it applies to direct perpetrators and aiders and abettors alike. Additionally, there is no requirement that the “felonious criminal conduct” be gang related. In People v Albillar (2010) 51 C4th 47, 55,119 CR3d 415, the court ruled that this section of the STEP Act is violated whenever a defendant, inter alia, “willfully promotes, furthers, or assists in any felonious criminal conduct by gang members.”

Expert testimony in a case alleging a Pen C §186.22(a) violation might be necessary to support the element of “active participation, “ ”criminal street gang, “ ”knowledge,” or “promotes, furthers, or assists.” Pen C §186.22(a). See §17.18.

Note: The California Supreme Court has granted review in People v Rodriguez (review granted Jan. 12, 2011, S187680; superseded opinion at 188 CA4th 722, 115 CR3d 799) in which it may be considered whether an active participant in a criminal street gang may be found guilty of violating Pen C §186.22(a) if he or she, acting entirely alone, commits a felony.

2. Sentence Enhancement Provision – Pen C §186.22(b)

The sentence enhancement provision provides a range of additional punishment for “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang members.” Pen C §186.22(b). See also CALCRIM 1401; People v Stallworth (2008) 164 CA4th 1079, 1104, 80 CR3d 347 (rejecting argument that absence of word “specific” somehow established that CALCRIM 1401 omitted element of specific intent).

The sentence enhancement provision provides a range of the STEP Act carries the greatest range of penalty options and consequences, including life in prison. Pen C §186.22(b)(1). It is arguably the most widely used provision of the STEP Act, and the one with the greatest number of cases involving use of expert testimony. In a typical criminal street gang case involving the sentence enhancement provision, a gang expert may offer testimony as to all of the elements. Thus, the gang expert testifies not only as to the existence of a “criminal street gang” but also as to whether the offense was gang-related. See Pen C §186.22(b).

3. Alternate Penalty Provision – Pen C §186.22(d)

The alternate penalty provision provides either a county jail or prison term and attaches to any misdemeanor or felony “which is committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” Pen C §186.22(d); Robert L. V Superior Court (2003) 30 C4th 894, 135 CR2d 30. See In re Damien V. (2008) 163 CA4th 16, 77 CR3d 107 (186.22(d) applies to juveniles as well as adults).

Like the sentence enhancement provision, an expert testifying in support of a Pen C §186.22 (d) prosecution might testify to all of the element in the statute, namely the existence of a criminal street gang as defined by Pen C §186.22 (f) , as well as the commission of the crime in relation to (benefit/direction/association) and in support of (to promote, further, or assist) the gang. See Pen C §186.22 (d).

4. Constitutional Considerations

Mere membership in gang should be contrasted with committing a crime for the benefit of, at the direction of, or in association with a criminal street gang. See Pen C §186.22(b), (d). The practitioner should watch out for cases where there are few, if any, facts indicating that the crime was gang-related other than mere membership in a criminal street gang. In many urban neighborhoods, youth may associate with or belong to a criminal street gang. Nonetheless, if a gang allegation is charged in such situations, or argument might be made that the State is simply punishing mere membership or association with a particular group in violation of the First Amendment (association) and the Due Process Clause of the Fifth Amendment (punishing status versus personal guilt). See Scales v U.S. (1961) 367 US 203, 226, 6 L ED 2d 782, 799k, 81 S Ct 1469; Dawson v Delaware (1992) 503 US 159, 117 L ED 2d 309, 112 S Ct 1093. Mere membership in a criminal street gang is insufficient to trigger criminal liability under Pen C §186.22 (a) or (b). “Membership, without more, in an organization engaged in illegal advocacy, it is now said, has not heretofore been recognized” as satisfying “the concept of personal guilt in order to withstand attack under the Due Process Clause of the Fifth Amendment.” Scales, 367 US at 225.

The Morales Law Firm would like to Thank

Scientific Evidence in California Criminal Cases for sharing this information with us.