California Penal Code section 190.2(a)(22)

In People v. Carr (2010) 190 Cal.App.4th 475, the defendant challenged the sufficiency of the evidence supporting the true finding as to his section 190.2, subdivision (a)(22) gang special circumstance allegation. The trial court in Carr used CALCRIM No. 736 to instruct on the elements of that subdivision. he CALCRIM No. 736 instruction given in the present case was substantially the same as the one used in Carr. The instruction given in the present case stated: "The defendant is charged with the special circumstance of committing murder while an active participant in a criminal street gang in violation of Penal Code section 190.2(a)(22). To prove that this special circumstance is true, the People must prove that: 1. The defendant intentionally killed Albert Molina and Johnny Ray Lopez; 2. At the time of the killing, the defendant was an active participant in a criminal street gang; 3. The defendant knew that members of the gang engage in or have engaged in a pattern of criminal gang activity; AND 4. The murder was carried out to further the activities of the criminal street gang. Active participation means involvement with a criminal street gang in a way that is more than passive or in name only. The People do not have to prove that the defendant devoted all or a substantial part of his time or efforts to the gang, or that he was an actual member of the gang. A criminal street gang is defined in another instruction to which you should refer." Carr concluded that, notwithstanding the third enumerated knowledge element in CALCRIM No. 736, section 190.2, subdivision (a)(22) itself did not expressly impose a knowledge element. (Carr, supra, 190 Cal.App.4th at p. 486.) However, Carr observed federal due process required a person could not be criminally liable for active membership in a criminal organization absent " 'guilty knowledge and intent' " (id. at p. 487); therefore, due process mandated that one of section 190.2, subdivision (a)(22)'s elements was that a defendant have "knowledge of the gang's criminal purposes" (id. at p. 487). Carr did not expressly eliminate the third enumerated knowledge element set forth in CALCRIM No. 736, but expressly construed that element to not require a defendant's "knowledge of particular crimes committed by gang members." (Carr, at p. 488, fn. 13.)