PC 186.22: Proving Pattern of Criminal Gang Activity?

Assembly Bill 333 changed the requirements for proving a sentence enhancement for a "gang crime", making it more difficult for a prosecutor to prove such an enhancement applies.

The following summary of a recent Fourth Appellate District Court opinion arising from a Riverside Superior Court case is a good opinion to understand for what is acceptable to show a pattern of criminal gang activity to allow such a sentencing enhancement.

On the twelfth day of a jury trial in Riverside County Superior Court, a jury found Kejuan Darcell Clark guilty of (1) rape (Penal Code § 261(a)(2)); (2) forced oral copulation (Penal Code § 287(c)(2)(A)); (3) false imprisonment (Penal Code § 236); (4) first degree burglary (Penal Code §§ 459, 460(a)); and (5) robbery in concert in an inhabited dwelling (Penal Code §§ 211, 213(a)(1)(A)).

The jury found true that the false imprisonment, burglary and robbery were committed in association with a criminal street gang with the specific intent to assist criminal conduct by gang members (Penal Code § 186.22(b)(1)(C)).  Mr. Clark also admitted a prior strike conviction (Penal Code §§ 667(c) & (e)(1)), 1170.12(c)(1)).

The judge sentenced Clark to a determinate sentence of 20 years plus an indeterminate sentence of 90 years to life.

Clark appealed on two grounds, one being that the judge erred by excluding the victim’s sexual history, and the other being that the Assembly Bill (AB) 333 changed the requirements for gang enhancements (Penal Code § 186.22(b)) and the evidence in this case did not satisfy the new legal requirement, so the gang enhancement must be reversed.

This article will only deal with the gang enhancement argument.

The threshold first question is whether the changes to 186.22(b) are retroactive.  They are.  People v. Sek (2022) 74 Cal. App. 5th 657, 667; People v. E. H. (2022) 75 Cal. App. 5th 467, 478.

There was little dispute in the case that Clark was a member of the Sex Cash Money criminal street gang.  There was also little dispute that Clark burglarized the victim’s home with three other men who were members of the Northside Parkland street gang, which was a subset of the Sex Cash Money street gang.

The Fourth Appellate District began its analysis by reminding the reader that a “criminal street gang means an ongoing, organized association or group of three or more persons . . . whose members collectively engage in, or have engaged in, a pattern of criminal activity.” Penal Code § 186.22(f).  More than one member of the gang must have engaged in criminal conduct. 

“Pattern of criminal conduct means the commission of . . . or conviction of, two or more of the following offenses . . . and the offenses were committed on separate occasions or by two or more members.” Penal Code § 186.22(e). Such offenses are characterized as “predicate offenses.”

There are two ways to prove this required pattern: (1) prove two different gang members separately committed crimes on two occasions; or (2) prove two different gang members committed a crime together on a single occasion.  It would not suffice if one gang member committed two crimes on two separate occasions because it must be proven that members (plural) of the gang are collectively involved in criminal activity.

In Clark’s case, which involved the burglary (plus rape, oral copulation, and robbery) in 2015, one of the predicate offenses was a robbery committed on October 13, 2014, by Damon Ridgeway, a member of the Sex Cash Money gang.  Another predicate offense was an attempted residential burglary committed by defendant on April 7, 2014.  Thus, there was evidence that two members of the Sex Cash Money gang committed crimes on separate occasions.  Given this evidence, the Fourth Appellate District concluded beyond a reasonable doubt that members of the Sex Cash Money gang “collectively . . . have engaged in a pattern of criminal activity.” 

We present this summary because many of the appellate court rulings on AB 333’s changes to the level of proof have addressed whether the enhancement is proper if the crime only promotes a gang’s reputation, but this case addresses the proof required to show predicate offenses.

The citation for the Fourth Appellate District Court ruling discussed above is People v. Kejuan Darcell Clark (4th App. Dist., 2022) 81 Cal. App. 5th 133, 296 Cal. Rptr. 3d 153.

For more information about proving the sentencing enhancement for gang activity, please click on the following articles: