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Court Reverses Criminal Street Gang Findings

People v. Delgado Docket: B299482 (Second Appellate District), Opinion Date: February 10, 2022. Delgado was convicted of shooting at an occupied vehicle, assault with an assault weapon, and possession of a firearm by a felon. The jury found true gang and firearm enhancements. The court had instructed the jury with CALCRIM 315 that an eyewitness’s degree of certainty can be considered when evaluating the reliability of the witness’s identification. The court of appeal affirmed in 2021. The Supreme Court remanded for reconsideration in light of "Lemcke" (2021), in which it found that CALCRIM 315 has the potential to mislead jurors reinforcing a “common misconception" that eyewitness identification is more likely to be reliable where the witness has expressed certainty. Assembly Bill 333 became effective January 1, 2022, modifying the criminal street gang enhancement statute (Penal Code 186.22). The definition of a “criminal street gang” now requires proof that members of a gang “collectively engage in, or have engaged in, a pattern of criminal gang activity.” The court of appeal affirmed the conviction. Considering the jury instructions as a whole and the trial record, the inclusion of the witness-certainty factor did not violate Delgado’s due process rights. The court reversed the criminal street gang findings. The prosecution had to prove that two or more gang members committed each predicate offense. Proof that individual gang members committed the predicate offenses on separate occasions was insufficient to show the gang members “collectively” engaged in a pattern of criminal activity. #gangenhancements #criminalstreetgang #proofofgangactivity

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