Section 1401 | CALCRIM (Jury Instructions)

If there is sufficient evidence that the defendant withdrew, the court has a sua
sponte duty to give the final bracketed section on the defense of withdrawal.
Related Instructions
This instruction should be used when a defendant is charged with a violation of
Penal Code section 186.22(a) as a substantive offense. If the defendant is charged
with an enhancement under 186.22(b), use CALCRIM No. 1401, Felony or
Misdemeanor Committed for Benefit of Criminal Street Gang (Pen. Code,
§ 186.22(b)(1) (Felony) and § 186.22(d) (Felony or Misdemeanor)).
For additional instructions relating to liability as an aider and abettor, see the Aiding
and Abetting series (CALCRIM No. 400 et seq.).
AUTHORITY
•
Elements. Pen. Code, § 186.22(a).
•
“Active Participation” Defined. People v. Castenada, supra, 23 Cal.4th at p. 747.
•
“Criminal Street Gang” Defined. Pen. Code, § 186.22(f).
•
“Pattern of Criminal Gang Activity” Defined. Pen. Code, § 186.22(e), (g).
•
Examples of Common Benefit. Pen. Code, § 186.22(g).
•
“Willful” Defined. Pen. Code, § 7(1).
•
Applies to Both Perpetrator and Aider and Abettor. People v. Ngoun (2001) 88
Cal.App.4th 432, 436 [105 Cal.Rptr.2d 837]; People v. Castenada, supra, 23
Cal.4th at pp. 749–750.
•
“Felonious Criminal Conduct” Defined. People v. Albillar (2010) 51 Cal.4th 47,
54–59 [119 Cal.Rptr.3d 415, 244 P.3d 1062]; People v. Green, supra, 227
Cal.App.3d at p. 704.
•
Separate Intent From Underlying Felony. People v. Herrera (1999) 70
Cal.App.4th 1456, 1467–1468 [83 Cal.Rptr.2d 307].
•
Willfully Assisted, Furthered, or Promoted Felonious Criminal Conduct. People
v. Rodriguez (2012) 55 Cal.4th 1125, 1132–1138 [150 Cal.Rptr.3d 533, 290 P.3d
1143].
•
Temporal Connection Between Active Participation and Felonious Criminal
Conduct. People v. Garcia (2007) 153 Cal.App.4th 1499, 1509 [64 Cal.Rptr.3d
104].
•
Crimes Committed After Charged Offense Not Predicates. People v. Duran,
supra, 97 Cal.App.4th at p. 1458.
•
Conspiracy to Commit This Crime. People v. Johnson (2013) 57 Cal.4th 250,
255, 266–267 [159 Cal.Rptr.3d 70, 303 P.3d 379].
•
Proof of Sufficient Connection Among Gang “Subsets” and Umbrella Gang
Required. People v. Prunty (2015) 62 Cal. 4th 59, 81–85 [192 Cal.Rptr.3d 309,
355 P.3d 480].
COMMENTARY
The jury may not consider the circumstances of the charged crime to establish a
CRIMINAL STREET GANGS
CALCRIM No. 1400
1061

of
<insert one or more crimes listed in Pen. Code,
§ 186.22(e)(1)>;
AND
3. Whose members collectively engage in or have engaged in a
pattern of criminal gang activity.
In order to qualify as a primary activity, the crime must be one of the
group’s chief or principal activities rather than an occasional act
committed by one or more persons who happen to be members of the
group.]
<Give this paragraph only when the conduct that establishes the pattern of
criminal gang activity, i.e., predicate offenses, has not resulted in a
conviction or sustained juvenile petition>
[To decide whether the organized association or group has, as one