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Name: People v. Clark (2024) 15 Cal.5th 743
Case #: S275746
Court: CA Supreme Court
Opinion Date: 02/02/2024
Summary

Penal Code section 186.22’s requirement that gang members “collectively engage in” a pattern of criminal gang activity means there must be a nexus between the individual predicate offenses and the gang as an organized, collective enterprise; it does not mean that each of the two predicate offenses must be committed by two or more gang members. Clark was convicted of residential burglary and other offenses with gang enhancements. On appeal he argued, based on the changes made by Assembly Bill No. 333, that section 186.22 now requires proof that two or more gang members, acting in concert, committed each of the two required predicate offenses. The Court of Appeal disagreed with Clark and another Court of Appeal’s decision on this issue. The California Supreme Court granted review to resolve the conflict. Held: Reversed. Section 186.22(f) now defines “criminal street gang” to require that the “members collectively engage in, or have engaged in, a pattern of criminal gang activity.” (Prior to AB 333, the statute read “individually or collectively.”) A “pattern of criminal gang activity” is established by commission of two enumerated predicate offenses, so long as they “were committed on separate occasions or by two or more members” of the gang. (§ 186.22(e)(1).) The Supreme Court analyzed the statutory language of section 186.22, the legislative history, and relevant case law and concluded the requirement that members “collectively engage in” a pattern of criminal gang activity does not mean that each of the two predicate offenses must be committed in concert with other gang members and cannot be committed by individual gang members acting alone. Instead, the requirement of collective engagement requires “a showing of a connection, or nexus, between an offense committed by one or more gang members and the organization as a whole.” “This organizational nexus requirement is satisfied by showing a connection between the predicate offenses and the organizational structure, primary activities, or common goals and principles of the gang.” [Editor’s Notes: (1) The court did not decide whether the use of the plural “members” in section 186.22(f) means that the predicate offenses must be committed by at least two different gang members, and did not decide whether or not those gang members may include the defendant. (2) The also disapproved a number of Court of Appeal opinions.]

The lack of instruction on the new elements of collective engagement is not harmless beyond a reasonable doubt. The Court of Appeal had held that because there was evidence that two members of Sex Cash Money committed crimes on separate occasions, any reasonable jury would have concluded beyond a reasonable doubt that members of Sex Cash Money collectively have engaged in a pattern of criminal gang activity. The Supreme Court disagreed. To establish collective engagement, the prosecution should have established a nexus between the offenses and the gang as a collective enterprise. Here, the evidence of each predicate offense was a plea agreement that contained little information besides the fact that another gang member pleaded guilty to robbery in 2014 and Clark pleaded guilty to attempted residential burglary in 2014. The prosecution did not present evidence to establish whether the predicate offenses were committed to benefit the gang, or whether there existed an organizational nexus between those offenses and the gang as a collective enterprise.