AB 333 & Showing Pattern of Criminal Activity, Nexus

As the reader may have observed or even experienced, in some cases, proving that a crime is part of a criminal street gang’s activities can be tough.

Following Assembly Bill 333’s passage in 2021, to do so, requires showing there is a criminal street gang involved, which the new law defines as “an ongoing, organized association or group of three or more persons . . . whose members collectively engage in, or have engaged in, a pattern of criminal gang activity.” Penal Code § 186.22(f).  Such prior offenses are often called predicate offenses. 

 

A “pattern of criminal gang activity” is established by showing the commission of two or more enumerated offenses that “were committed on separate occasions or by two or more [gang] members.” § 186.22(e)(1).  The statute does not specify whether such two or more prior offenses can be committed by just one gang member acting alone for the collective benefit of the gang.

The recently reported ruling in People v. Kejuan Darcell Clark, from the California Supreme Court, following a ruling in the Fourth Appellate District in Riverside County, answers this question in the affirmative.

Mr. Clark was charged with several offenses arising from a July 2015 incident in which he and others entered a woman’s home without permission.  The Riverside County District Attorney’s office alleged that Mr. Clark proceeded to the woman’s bedroom, where he raped her, then stole her laptop computer and phone.

At the time, Mr. Clark was a member of the Northside Parkland street gang, a subset of the Sex Cash Money street gang.  In addition to charging the substantive offenses, the prosecution alleged various gang enhancements under Penal Code § 186.22(b).  

To establish the gang enhancements, the prosecution introduced the testimony of a gang expert, who testified that the primary activities of the gang included robbery and burglary.  The expert described Sex Cash Money as a loosely controlled organization.  The gang did not have a leader or any formal structure.  Instead, there were “big homies” in the gang who were older and looked up to by other members.  The expert was not aware of any obligation of the Sex Cash Money members to give proceeds from a robbery or burglary to the gang, unlike some gangs that had specific requirements to “pay upstairs” after such crimes.  Much of the testimony of the expert was devoted to establishing that the individuals with Mr. Clark on the night of the charged offense were also gang members and that the charged burglary would benefit the gang.

To establish the requisite pattern of criminal activity by the gang, the prosecution introduced certified convictions showing that another gang member, Damon Ridgeway, had pleaded guilty to robbery in 2014 and to residential burglary in 2009, and that Mr. Clark had pleaded guilty to attempted burglary in 2014.  The expert testified that these offenses, and the convictions or pleas of Mr. Clark’s codefendants in the charged burglary, showed a pattern of criminal activity by Sex Cash Money.

The testimony did not address whether the predicate offenses, as distinct from the charged burglary, benefited the gang or how they were otherwise collectively related to the gang.  

The jury then convicted Mr. Clark of rape, forced oral copulation, false imprisonment, first degree burglary and robbery in concert inside an inhabited dwelling.  The jury found the gang enhancements true as to the burglary, robbery and false imprisonment counts.  The judge then sentenced Mr. Clark to 20 years, plus an indeterminate term of 90 years to life, including a ten-year term for the gang enhancement.

Mr. Clark appealed his convictions and while his appeal was pending, AB 333’s amendments to 186.22 took effect.  Mr. Clark argued, and the People did not dispute, that the amendments applied retroactively to cases on direct review such as his.

Invoking the collective engagement provision of the new law, Mr. Clark argued that the evidence of predicate offenses at trial was insufficient to support the gang enhancements because the evidence showed only the commission of offenses by gang members.  Clark argued that the statute required two or more gang members, acting in concert, to commit each of the two required predicate offenses.

The Fourth Appellate District rejected this argument as not required to show a pattern of criminal gang activity under 186.22(e)(1).  The court of appeal stated that the statute required either that the prosecution show (1) two different gang members separately committed crimes on two different occasions; or (2) two different gang members committed a crime together on a single occasion.  Here there was evidence that two different gang members (Mr. Clark and Mr. Ridgeway) separately committed crimes on two different occasions. 

 

Mr. Clark then appealed to the California Supreme Court, which held that Mr. Clark was right.  It held that Assembly Bill 333’s amendment required the prosecution show a nexus between the two predicate offenses to a gang as an organized, collective enterprise.  This reading of 333 better fit with the legislative purpose of narrowing threats posed by organized group activity to those committed by actual organized gangs.  

The conviction on the gang enhancement was therefore reversed and remanded to the superior court for the prosecution to decide whether to offer additional evidence to satisfy the newly enacted requirements of § 186.22.