Section 1400 | CALCRIM (Jury Instructions)

New January 2006; Revised August 2006, June 2007, February 2014, February
2016, March 2022, March 2023
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the special
circumstance. (See People v. Williams (1997) 16 Cal.4th 635, 689 [66 Cal.Rptr.2d
573, 941 P.2d 752].) The effective date of this special circumstance was March 8,

There is a split in authority over the meaning of “collectively.” (Compare People v.
Delgado (2022) 74 Cal.App.5th 1067 [290 Cal.Rptr.3d 189] [two or more gang
members must have committed each predicate offense]; People v. Clark (2022) 81
Cal.App.5th 133 [296 Cal.Rptr.3d 153] [pattern of criminal gang activity may be
established either by (1) two gang members who separately committed crimes on
different occasions, or (2) two gang members who committed a crime together on a
single occasion], review granted October 19, 2022, S275746.)
On request, give the bracketed paragraph that begins with “The People do not need
to prove that the defendant devoted all or a substantial part of . . . .” (See Pen.
Code, § 186.22(j).)
On request, give the bracketed paragraph that begins with “If you find the defendant
guilty of a crime in this case.” (People v. Sengpadychith (2001) 26 Cal.4th 316,
322–323 [109 Cal.Rptr.2d 851, 27 P.3d 739]; People v. Duran (2002) 97
Cal.App.4th 1448, 1464–1465 [119 Cal.Rptr.2d 272].)
On request, give the bracketed paragraph that begins with “You may not find that
there was a pattern of criminal gang activity.” (People v. Funes (1994) 23
Cal.App.4th 1506, 1527–1528 [28 Cal.Rptr.2d 758]; see also Related Issues section
to CALCRIM No. 1400, Active Participation in Criminal Street Gang.)
On request, the court must give a limiting instruction on the gang evidence. (People
v. Hernandez (2004) 33 Cal.4th 1040, 1051–1052 [16 Cal.Rptr.3d 880, 94 P.3d
1080].) If requested, give CALCRIM No. 1403, Limited Purpose of Evidence of
Gang Activity.
Related Instructions
CALCRIM No. 562, Transferred Intent.
CALCRIM No. 1400, Active Participation in Criminal Street Gang.
AUTHORITY
•
Special Circumstance. Pen. Code, § 190.2(a)(22).
•
“Active Participation” Defined. People v. Castenada (2000) 23 Cal.4th 743, 747
[97 Cal.Rptr.2d 906, 3 P.3d 278].
•
“Criminal Street Gang” Defined. Pen. Code, § 186.22(f).
•
Transferred Intent Under Penal Code Section 190.2(a)(22). People v. Shabazz
(2006) 38 Cal.4th 55 [40 Cal.Rptr.3d 750, 130 P.3d 519].
HOMICIDE
CALCRIM No. 736
489

•
“Pattern of Criminal Gang Activity” Defined. Pen. Code, § 186.22(e), (g).
•
Examples of Common Benefit. Pen. Code, § 186.22(g).
•
“Felonious Criminal Conduct” Defined. People v. Green (1991) 227 Cal.App.3d
692, 704 [278 Cal.Rptr. 140] [abrogated on other grounds by People v.
Castenada (2000) 23 Cal.4th 743, 747–748 [97 Cal.Rptr.2d 906, 3 P.3d 278].
•
Separate Intent From Underlying Felony. People v. Herrera (1999) 70
Cal.App.4th 1456, 1467–1468 [83 Cal.Rptr.2d 307].
•
Crimes Committed After Charged Offense Not Predicates. People v. Du