Gang Special Circumstance (§190.2(a)(22))

A gang-related murder may qualify the defendant for either LWOP or the death penalty. Section 190.2, subdivision (a)(22) authorizes a defendant to be sentenced to “death or imprisonment in the state prison for life without the possibility of parole” if “[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22 and the murder was carried out to further the activities of the criminal street gang.” 

Enactment: "Section 190.2, subdivision (a)(22), was enacted as part of Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, an initiative measure adopted by the electorate in March 2000." (People v. Carr (2010) 190 Cal.App.4th 475, 485.)

Knowledge Element: Although the gang-related special circumstance requires proof that the defendant "was an active participant in a criminal street gang," the Court in Carr held that the prosecutor need not prove the knowledge element of the active participation crime defined in subdivision (a) of section 186.22, which requires proof that the defendant acted "with knowledge that its members engage in or have engaged in a pattern of criminal gang activity." Because section 190.2(a)(22) references subdivision (f) of section 186.22, not subdivision (a) of section 186.22, the Court reasoned in Carr that the prosecutor need not establish the knowledge element of subdivision (a) of section 186.22 in order to prove the gang-related special circumstance. (190 Cal.App.4th at 486-487.) Nevertheless, the Court in Carr concluded that the due process requirement that criminal liability be based on personal guilt, requires that the prosecutor prove the defendant "to have had the knowledge of the gang's criminal purposes." (Id. at 487-488.) 

Note that the CALCRIM instruction for the gang special circumstance (CALCRIM No. 736), includes the same knowledge element as subdivision (a) of section 186.22: "The defendant knew that members of the gang engage in or have engaged in a pattern of criminal gang activity." The Court in Carr observed that although it did not view that knowledge element as required by the statute (190.2(a)(22)), its inclusion was not legally incorrect because of the constitutional due process requirement that the defendant have knowledge of the gang's criminal purposes. (190 Cal.App.4th at 488.) 

Finally, the Court in Carr also concluded that incorporating a knowledge requirement into the gang special circumstance is probably superfluous because "Section 190.22, subdivision (a)(22), further requires the People prove 'the murder was carried out to further the activities of the criminal street gang.'" (190 Cal.App.4th at 488.) 


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