The criminal street gang special circumstance for murder (Pen. Code, sec. 190.2, subd. (a)(22)), requires knowledge that the gang’s members engage in criminal activities but not subjective knowledge of particular crimes. Two people were murdered by a man riding a bicycle and witnesses placed appellant at the scene. He was convicted of the murders, and a gang enhancement and gang special circumstance allegation were found true. Appellant argued the gang allegations required reversal because it was not proven appellant had knowledge the gang was engaged in criminal activity. The appellate court noted that the gang special circumstance allegation does not contain an express knowledge requirement, even though CALCRIM No. 736 defining its elements does. The court held that while there is no statutory knowledge requirement, there is a constitutional one. As noted in People v. Castaneda (2000) 23 Cal.4th 743, due process requires that punishment based on active participation in a street gang (as is the case with the gang special circumstance allegation) be based on knowledge of the group’s criminal purpose. But, a defendant need not have subjective knowledge of specific crimes committed by the gang. Here there was substantial circumstantial evidence of the requisite knowledge based on appellant’s recent admission to police about his gang membership, the fact that the murders were committed in the gang’s territory, and the gang expert’s testimony about the gang’s culture and habits.
Any Griffin error committed during closing argument was harmless. During closing argument, the prosecutor said, “You didn’t hear from the defense. You didn’t hear- the defense did not provide any alibi witnesses.” Appellant argued the statement was Griffin error which prohibits the prosecutor from commenting on a defendant’s silence. The court agreed the statement about not hearing from the defense was “potentially improper.” But the error was harmless in light of the admonition the court gave to the jury to ignore the comment and not to discuss it in deliberations.