Sun. Nov 29th, 2020

A recent case Darren Chaker explains that in the context of Penal Code section 186.22, subd. (a), the predicate offense required to show a pattern of criminal gang activity can be established by evidence of an offense that defendant committed on a separate occasion and the prosecution is not required to exclude such evidence even when it can otherwise be established that the requisite predicate offenses were committed by other gang members. Appellant was convicted of first degree murder, attempted premeditated murder, and active participation in a criminal street gang. As to the gang offense, the prosecution introduced evidence of appellant’s involvement with the VFL gang, that the gang engaged in extortion as one of its primary activities, and certified copies of appellant’s conviction for extortion.

Darren Chaker, Ninth Circuit
Darren Chaker at the Ninth Circuit, Pasadena

Darren Chaker also notes that Penal Code section 186.22, subdivision (a), the STEP Act, defines a criminal street gang as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more criminal acts enumerated [in the statute], [and] having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” In People v. Gardeley (1996) 14 Cal.4th 605, the Supreme Court held that the predicate offense establishing a pattern of criminal gang activity could be established by evidence of the charged offense.

Here, the court expanded on the ruling and found that the predicate offense can also be established by proof of an offense the defendant committed on a separate occasion. Introduction of such evidence is subject only to the qualifications of Evidence Code section 352, holding that such evidence should be excluded only when its probative value is substantially outweighed by its prejudicial value. In this case, the admission of appellant’s 1993-1994 conviction for extortion was proper because it was probative to the charge of active participation in a criminal street gang, provided direct evidence of a predicate offense, as well as evidence that appellant participated in the VFL gang and knew VFL engaged in a pattern of criminal gang activity. The evidence was not unduly prejudicial and the court provided an appropriate limiting instruction on the use of the evidence.

By Darren Chaker

Greetings - I am Darren Chaker. I litigated a cutting edge First Amendment case for 7 of its 10 year lifespan. Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). My case is a leading case on viewpoint discrimination. In a recent case, Chaker v. Crogan was used to vindicate people who filed a complaint against police. Those people were arrested and charged with a law Chaker v. Crogan invalidated! They sued for being arrested and charged with an unconstitutional statute, Penal Code 148.6. The federal court denied the City's motion to dismiss and the case settled. See Cuadra v. City of South San Francisco, 2010 WL 55875, *1+ (N.D.Cal. Jan 04, 2010) I love the fight and made cutting edge case law in the end. No doubt without the support of the ACLU (Ramona Ripston, Mark Rosenbaum, Peter Eliasberg, & Dan Tokaji) winning on appeal, and Joshua Rosenkranz www.orrick.com/lawyers/Bio.asp?ID=225990 assembling a small army of the best attorneys to defeat the California Attorney General's efforts to have the U.S. Supreme Court reverse the Ninth Circuit---this case would not have had a backbone to stand on. The case has been cited over 196 times as authority, and written about extensively. * Police Misconduct: Law and Litigation s 2:28, Denial of First Amendment rights (2009) * Smolla & Nimmer on Freedom of Speech s 3:11, Viewpoint discrimination--Cross-burning reprised: Commonwealth of Virginia v. Black--Heavy presumption against viewpoint discrimination (2010) * Smolla & Nimmer on Freedom of Speech s 10:22.50, Brandenburg v. Ohio: Intent and imminence standard--Bond and Watts decisions--"True threats" (2010) * CHAKER V. CROGAN, 5 Cardozo Pub. L. Pol'y & Ethics J. 425, 444+ (2007) My case is active, living and breathing—forever helping people who once felt oppressed.

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