Section 1403 | CALCRIM (Jury Instructions)

charged under subdivision (a) of section 186.22 or of active gang participation
charged as an element of felony firearm charges under section 12025(b)(3) or
12031(a)(2)(C). People v. Lamas (2007) 42 Cal.4th 516, 524 [67 Cal.Rptr.3d 179,
169 P.3d 102].
The court should also give the appropriate instructions defining the elements of
crimes inserted in the list of alleged “primary activities” or inserted in the definition
of “pattern of criminal gang activity” that have not been established by prior
convictions or sustained juvenile petitions. The court should also give the
appropriate instructions defining the elements of all crimes inserted in the definition
of “felonious criminal conduct.”
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
below on Unanimity.)
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.
If the defendant is charged with other counts that do not require gang evidence as
an element, the court must try the Penal Code section 186.22(a) count separately.
(Pen. Code, § 1109(b).)
Defenses—Instructional Duty
If there is evidence that the defendant was merely present at the scene or only had
knowledge that a crime was being committed, the court has a sua sponte duty to
give the bracketed paragraph that begins with “If you conclude that defendant was
present.” (People v. Boyd (1990) 222 Cal.App.3d 541, 557 fn. 14 [271 Cal.Rptr.
738]; In re Michael T. (1978) 84 Cal.App.3d 907, 911 [149 Cal.Rptr. 87].)
CALCRIM No. 1400
CRIMINAL STREET GANGS
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322–323; People v. Duran (2002) 97 Cal.App.4th 1448, 1464–1465 [119 Cal.Rptr.2d
272].)
On request, give the bracketed paragr