Prosecuting Gang Cases

S P E C I A L TO P I C S S E R I E S
American
Prosecutors
Research Institute
Prosecuting
Gang Cases
What Local Prosecutors
Need to Know
Bureau of Justice Assistance

Office of Justice Programs ■ U.S. Department of Justice
American Prosecutors Research Institute
99 Canal Center Plaza, Suite 510
Alexandria,VA 22314
www.ndaa-apri.org
Newman Flanagan
President
Debra Whitcomb
Acting Chief Administrator
Director, Grant Programs and Development
George Ross
Director, Grants Management
This information is offered for educational purposes only and is not legal advice.This project
was supported by the Bureau of Justice Assistance, United States Department of Justice under
Grant Number 2001-GP-CX-K050. Points of view or opinions expressed in this document are
those of the authors and do not necessarily represent the official position of the Bureau of
Justice Assistance, United States Department of Justice, the National District Attorneys
Association or the American Prosecutors Research Institute.
The American Prosecutors Research Institute is the nonprofit research, training and technical
assistance affiliate of the National District Attorneys Association.
S P E C I A L TO P I C S S E R I E S
Prosecuting
Gang Cases
What Local Prosecutors
Need to Know
April 2004 Alan Jackson

Deputy District Attorney
Los Angeles County District
Attorney’s Office
Los Angeles, CA
TA B L E OF CONTENTS
1 Forward
3 Author’s Acknowledgements
5 Introduction
7 Overview of a Gang Case:
Getting Jurors Out of the Courtroom
What Gang Evidence Can Prove:The Tip of the Iceberg
Why Do Gang Members Join Gangs?
Will the Real Defendant Please Stand Up?
Turf,Territory, and Membership
19 Get Ready For the Fight: Greasing the Skids
Witness Problems in Gang Cases
California’s STEP Act as a Model
Getting the Most Out of the Gang Expert
29 Closing Remarks
31 Appendix A: California STEP Act: Penal Code
Section 186.20 – 186.22
39 Appendix B: Proposed Voir Dire Questions
for a Gang Case
43 Appendix C: Sample Direct Examination
for a Gang Expert
iii
F O RWA R D
Few things evoke fear in a community like the incursion of gang activi-
ty. Senseless violence, turf battles and ubiquitous graffiti signal the arrival
of gangs.The law enforcement community also dreads the prospect of
confronting gang-driven crime.They know that with gangs come drugs,
guns, retaliatory killings and recriminations.The investigation and prose-
cution of these crimes present a host of difficult problems, including
recanting witnesses, intimidated bystanders and unsympathetic victims.
Nowhere are these problems more apparent and deep seated than in Los
Angeles, California. Gangs, some many generations old, dominate parts of
the city. In response, the law enforcement community has adopted specif-
ic strategies designed to address the gang problem. Special units within
the police department are dedicated to nothing but the investigation and
policing of gang activity.The Los Angeles County District Attorney’s
Office has followed suit, forming the Hardcore Gang Division in 1979.
Charged with prosecuting crimes committed by some of the country’s
most notorious gangs, the unit of 50 prosecutors makes extensive use of
the California Street Terrorism Enforcement and Prevention Act.This
legislation was borne of California’s exasperation with its escalating gang
problem. As the preamble states, “the Legislature…finds that the State of
California is in a state of crisis which has been caused by violent street
gangs whose members threaten, terrorize, and commit a multitude of
crimes against the peaceful citizens of their neighborhoods.” Armed with
this law providing for enhanced punishments for gang-related crimes,
prosecutors may now introduce evidence once considered inadmissible.
Proof of gang membership is allowable to show motive, intent, and
accomplice liability. Experts chronicling gang culture and mores now are
called on behalf of the prosecution. Other states have followed
California’s example and enacted gang legislation. (See footnote 2, infra.)
The author of this monograph, Alan Jackson, joined the Los Angeles
District Attorney’s Office as a deputy district attorney in 1995. Since
1999, he has prosecuted LA’s most violent offenders in the Hardcore
Gang Division, specializing in the vertical prosecution of violent gang
1
P ROSECUTING G ANG C ASES : W HAT L OC AL P ROSECUTORS N EED TO K NOW
members. He has also served as a gang prosecution instructor for the Los
Angeles District Attorney’s Office and the American Prosecutors
Research Institute (APRI).
Perhaps the most chilling bit of advice Mr. Jackson gives to prosecutors is
to “ready yourself.” Gangs are spreading; they are on your doorstep even
if you don’t realize it.The goal of this monograph is to provide practical
trial strategies for prosecutors engaged in combating gang violence and
ready prosecutors who will inevitably confront the problem.
Andrew Wright
Senior Attorney
2 A M E R I C A N P RO S E C U TO R S R E S E A R C H I N S T I T U T E
AUTHOR’S
ACKNOWLEDGEMENTS
Modern successful gang prosecutions in Los Angeles County are the

product of many years of work, the way being cleanly paved by bright
and dedicated prosecutors. I count myself among the many beneficiaries
of those prosecutors. Special thanks go to Janet Moore, director, Bureau
of Specialized Prosecutions, Los Angeles County District Attorney’s
Office, and Greg Dohi, deputy district attorney, Hardcore Gang Division,
Los Angeles County District Attorney’s Office, whose writings have both
inspired and informed the thoughts, concepts and ideas set forth in this
monograph.
Finally, for her sharp eye and smooth pen stroke, I owe a debt to Melanie
Spuches of the American Prosecutors Research Institute, who deftly edit-
ed and polished this work.
3
INTRODUCTION
Trying a gang case is one of the most difficult undertakings a prose-

cutor can face. Reluctant witnesses, perjurious testimony, and hostile
and intimidating courtroom crowds are but a few of the myriad prob-
lems a gang prosecutor can expect in trial. And sadly, we’re talking
about the prosecutor’s own case-in-chief. Indeed, the trademark charac-
teristic of a gang case is the difficult witness. Some witnesses are unco-
operative and openly hostile—those community members who fear for
their lives and, therefore, actively duck service of process, ignore sub-
poenas and either refuse to testify or lie on the witness stand. Other
witnesses, however, may be cooperative, but extremely unsympathetic
because they have been granted leniency or immunity in exchange for
testimony. The prosecutor may, therefore, be in the unenviable position
of arguing in the same case that the “elderly-neighbor-down-the-
street-witness” lied on the stand, and that the “co-conspirator-crook-
in-handcuffs-witness” should be believed. On top of all this, the prose-
cutor is faced with the very real concern of simply keeping these wit-
nesses alive.
Moreover, gang cases present unique challenges in terms of explaining

motive and complex theories of liability.The gang culture is rife with
idiosyncratic mores that define individual gangs and sub-cliques.These
customs often define the motive underlying the crime, how the crime is
carried out, and the identity of the perpetrator. It becomes incumbent
upon the prosecutor to educate the jury about gang culture and habits,
and to buttress that explanation with the proper theory of liability, such
as conspiracy, aiding and abetting, or vicarious liability.
This monograph seeks to address various pre-trial and trial issues in the
context of gang evidence. Hypothetical examples are used for illustrative
purposes. Additionally, this presentation includes references to California’s
Street Terrorism Enforcement and Protection (STEP) Act,1 which has
1 Cal. Penal Code § 186.21, et. seq. (See Appendix A).
5
spearheaded the country’s state legislatures’ answer to the growing

national epidemic known as gang crime.2
2 Many states have followed California’s example and enacted laws specifically designed to address
gangs and gang activity. A useful listing of these laws can be found at the Institute for
Intergovernmental Research’s website located at www.iir.com/nygc/gang-legis/.These laws typi-
cally require additional elements of proof, which necessarily expands the definition of what is
admissible evidence.
OVERVIEW OF A GANG CASE:
GETTING JURORS OUT
OF THE COURTROOM
The first question to come to the prosecutor’s mind is, “why use gang
evidence in the first place?” After all, prosecutors can expect that the
defense bar will cry foul at the first mention of gangs. For their part,
judges—especially those who have been ill-prepared to address issues
concerning gangs—will often have a knee-jerk reaction to side with the
defendant in his claims that gang evidence is overly prejudicial. Finally,
police officers may be hesitant to testify about gangs because they have
never been qualified as an expert.Wouldn’t it simply be easier to leave
the gang aspect of the trial alone?
Is it easier? Maybe. Is it a better trial technique? Never.
Successful prosecutors do not try their cases in the antiseptic environ-

ment of a courtroom. Crimes are not committed within the confines of
mahogany walls adorned with the great seal of the state. Rather, they are
committed on the streets of the city, in darkened alleyways and aban-
doned buildings. Good prosecutors seek to transport their juries to those
streets, alleys, and buildings. Gang evidence is one of the most powerful
tools in the government’s arsenal to accomplish that goal.
Gang evidence is highly probative in explaining what takes place on the

streets because it gives deep insight into the conduct of both defendants
and witnesses.While courts have determined that gang evidence is
admissible only for specific purposes, they have recently been broadening
the scope of those purposes.Today, a prosecutor can successfully argue
the admissibility of gang evidence for a range of purposes, including
proving intent, motive, and identity, establishing a theory of liability,
explaining witnesses’ demeanor, and explaining gang culture. Gang evi-
dence can set the tone for the trial and, at the same time, educate the
jury. Gang experts can explain the inexplicable, define the indefinable,
and can add rich color to an otherwise pale fact pattern. In other words,
if the crime includes gang evidence, use it.
7
Faced with the prospect of defending a case involving gang evidence,

defense attorneys cower. Understanding the power of such evidence, the
defense bar will try almost anything to prevent a prosecutor from admit-
ting gang evidence against their client.The first and most clamorous cry
is always the same: “Objection! Gang evidence is prejudicial.”The prose-
cutor’s response should be equally strident: “Of course it is! That’s the
point!”
No court in the land disallows evidence against the defendant solely

because it is prejudicial. Indeed, every word a prosecutor speaks in a
courtroom and every item of evidence submitted is, or should be, preju-
dicial to the defendant.The question is not whether the evidence is prej-
udicial, but whether it is substantially more prejudicial than probative.3
Given the extraordinary probative value of most gang evidence, prosecu-
tors should rarely give in on this point. In arguing for its admissibility, it
is incumbent upon the prosecutor to steer the court toward the proper
use of gang evidence.
What Gang Evidence Can Prove:The Tip of the Iceberg
Every day, courts are sanctioning broader uses for gang evidence.
Nothing requires that prosecutors allege a gang enhancement or charge a
gang crime in order to properly use gang evidence to prove their case.
Indeed, the vast majority of cases in which gang evidence is applicable
include no specific gang allegation. In those cases, the prosecutor must
focus the court’s attention on the reason for its admission. It is important
to remember, however, that the proper use of gang evidence is expand-
ing.The following illustrations merely scratch the surface.
To Prove Intent
As any prosecutor can attest, one of the most difficult elements to prove
in a criminal trial is intent. Prosecutors rely largely on circumstantial evi-
dence to prove the defendant’s purpose in committing the crime at hand;
gang evidence provides that circumstantial evidence.
3 See, e.g. Cal. Evid. Code § 352 (2004), stating that,“The court . . . may exclude evidence if its proba-
tive value is substantially outweighed by the probability . . . of undue prejudice.” (emphasis supplied).
OV E RV I E W OF A GANG CASE
Look at a hypothetical set of facts as told in two different ways, one

without the use of the underlying gang evidence, and the second
enriched with gang facts.The same question will be posed for each set
of facts.
In the first set of facts, we find the following: the victim is attending a
late-night party at a residence. During the night, the defendant drives up
in a car, stops and opens the car door.The defendant then points and
fires a gun at the victim, who is standing in the front yard.The victim is
struck, but lives.The question is, was the crime an assault with a firearm
or an attempted murder?
Now assume the same facts, but include the following gang evidence:
the victim’s late-night party is in Compton Varrio Grape Street gang’s
claimed neighborhood. The defendant is a known Florencia-13 gang
member. Grape Street and Florencia have been at war for several years
over their respective territory and drug trade. Three weeks before the
shooting at the party, a known Florencia-13 gangster was shot and
killed by a known Grape Street gangster. The gang expert testifies dur-
ing the trial that in the gang culture, when a gang is victimized, the
expected reaction is to strike back with equal or more violence. That is,
if a gang member is murdered, the usual reaction is retaliatory murder.
Again, the question is, was the crime an assault with a firearm or an
attempted murder? With the admission of the highly probative gang
evidence, the answer becomes clear. Gang evidence of rivalry and vio-
lence is admissible to establish that the intent harbored by the defen-
dant was the intent to kill.
To Prove Motive
Seldom, if ever, is a prosecutor legally required to prove motive in a
criminal trial. Motive is not normally an element of a charged offense.
Nevertheless, prosecutors should always attempt to prove motive in trial.
Jurors will ask the “why” question, if not of the prosecutor, at the very
least of each other. If it is not answered to their satisfaction, the jury will
see it as the prosecutor’s failing. For that reason, motive evidence is
always relevant.
9
Gang evidence is properly admitted to prove motive.The motives for a

gang crime can include payback and rivalries, as outlined in the example
above. Additionally, motivations can be derived from more arcane sources.
Drug sales, weapons transactions and extortion can all be at the root of
violent gang crimes, all of which are permissible subject matter for a gang
expert. Moreover, gang evidence that explains the history of rivalries and
violence between and among hostile gangs is admissible.Therefore, gang
experts can testify to violent acts committed by the defendant’s fellow
gang members. A useful technique for arguing the admissibility of such
evidence is to accede to a limiting instruction by the court.
Of course, nothing will befuddle a jury—and oftentimes a prosecutor—

more than the proverbial “random act of violence.” Rarely, however, is a
gang crime truly random. Gang experts can shed a bright light on the
murky corners of gang life.What appears to be, at first blush, an amor-
phous act with little in the way of rhyme or reason will take shape when
the gang expert explains the concept of respect in the gang culture.
Consider the following:
A 40-year-old man stands at a gas station filling the tank of his car. A
young gangster rides up on a bicycle and fires a bullet into the man’s
head, killing him.There is no connection between the two. Jurors yearn
for an explanation; the gang expert provides one.The expert will explain
that in the most violent gangs, recruits must show loyalty to their
brethren by committing murder. Only then will they be considered a
true member.With few exceptions, the victim is a stranger to the killer.
When the act is complete, the new member is said to have earned the
“respect” of his fellow gang members.
While prosecutors often bear no legal burden to prove motive, its power
when properly presented to a jury should never be overlooked or under-
estimated.
To Prove Identity
Unlike classic criminals of old who sought secrecy above all else, modern
gang members publicize their identities for all to see.The explanation is
simple: terrorism.
Terrorism is alive and well in our streets. Instead of the bomb, the gang-
sters’ weapon of choice is the drive-by shooting. Instead of camouflage,
their uniform includes baggy pants and knee-high socks. Instead of fly-
ing a flag to show their allegiance, they carry bandanas and throw hand
signs.While they don’t call themselves terrorists, the effect is just the
same—every day, innocent people are killed in the streets, often in broad
daylight.
Just like terrorists, gang members thrive on fear.The more fear they can
instill in the communities and their enemies, the greater the freedom
they enjoy while dealing in their dirty business of guns, drugs, and
extortion.That fear is implanted by taking credit for the violence they
perpetrate.
Gang members, therefore, often sign their crime, either figuratively or lit-
erally.Witnesses to a gang crime recite incredible tales of suspects walk-
ing up to enemy gang members in broad daylight and stating, “This is
Midget from Tortilla Flats [street gang],” just before shooting the rival.
While juries may be dumbfounded by such brashness, gang experts can
explain that such conduct is commonplace among gangs. First, commit-
ting the crime with such audacity sends a message to rivals that they are
not safe, day or night. Second, when Midget exclaims his name before
the crime, he shows individual fearlessness, and, therefore, enhances his
reputation among his own peers.That reputation may further be bol-
stered by graffiti that claims responsibility for the crime, and gives credit
to Midget for his accomplishment.
Such evidence is ripe for gang experts to explain. Although members of

the community may be reluctant to identify the perpetrator of the
shooting for fear of retaliation, the expert can circumstantially support
identity using statements made at the crime scene (“This is Midget”), the
subsequent graffiti (“T-Flats” & “Midget” spray painted on the walls), and
the defendant’s prior identification as Midget in gang files. Such evidence
can robustly corroborate a single identification witness, which many gang
prosecutors would be lucky to find.
11
To Prove Criminal Liability

Successful field marshals approach their battles with a clearly defined
plan. So should prosecutors approach their trials. Defining a cogent theo-
ry of liability enables the prosecutor to choreograph the presentation of
evidence in a simple, logical and persuasive manner. Gang evidence can
aid in defining tightly reasoned theories on which to build a solid case.
Gang members are, by nature, social creatures. Seldom will a gang mem-
ber commit an assault, a drive-by shooting or a drug transaction by him-
self.The gang prosecutor will, therefore, often be faced with deciding
whether one gangster, two or twenty are legally liable for the crime.
Take, for instance, the back seat passenger in a drive-by shooting.
Following the filing of murder charges, his lawyer will surely inform the
prosecutor that his client cannot be liable for murder, as he fired no
weapon and possessed no gun.
However, through properly admitted gang evidence, the prosecutor can

establish that merely throwing a hand sign or calling out a gang name
from the back seat of the car shows complicity in the crime.The gang
expert can testify that a drive-by shooting takes on a special significance

when accompanied by the signature of the offending gang.That is, the
gang’s reputation in the community for violence is secured when wit-
nesses hear, “This is Farm Town Crips” through the gunfire of a violent
attack.Thus, the back seat passenger who throws a sign or yells a gang
name may be prosecuted as an aider and abettor, and therefore is liable to
the same extent as the driver and the shooter.
Additionally, the prosecutor may wish to take another approach. Drive-

by shootings are rarely the product of a spur-of-the-moment decision.
More often, drive-bys can be traced to plans that were hatched hours or
even days before, when the car was stolen or the guns were secured.The
players in the conspiracy may range from the O.G. (original gangster)
who supplied the weapons or ammunition, to the graffiti tagger who
warned the victim gang of the impending violence. A close look at the
facts of the case, along with in-depth consultation with the expert, can,
in some instances, form the basis for a conspiracy charge.
To Explain Witnesses’ Conduct

There are only two sorts of gang prosecutors: those who have had wit-
nesses recant their statements during testimony, and those who will have
witnesses do so. As mentioned in the introduction, one defining charac-
teristic of a gang case is the recalcitrant, uncooperative witness. It is hard
enough to persuade 12 strangers to agree on anything in a trial court-
room.The difficulties mount exponentially when the prosecutor intro-
duces eyewitnesses who deny their previous statements to the police.
These difficulties are even further compounded when the recanting wit-
nesses are law-abiding citizens who appear to have no axe to grind.
While the gang prosecutor’s task is daunting, providing the jury with a
reasonable explanation for why citizen witnesses lie on the stand is with-
in reach. Evidence that the defendant’s gang is a violent, dangerous
organization whose modus operandi is to retaliate against cooperative wit-
nesses and their families is admissible to explain witnesses’ conduct. A
gang expert can elaborate on the type of street intimidation the defen-
dant’s gang employs. Photographs of graffiti in the neighborhood, evi-
dence of known gang hang-outs in that territory, and specific incidents
13
of gang retaliation against witnesses in the past are but a few of the seeds
the prosecutor should sow in the minds of the jurors.
The prosecutor’s job is to ensure that the jury understands that at the
end of the day, the witness must go home to the very neighborhood
claimed by the defendant and his gang. He or she will be forced to walk
the streets past members of the very gang against which the witness was
asked to testify. Long after the case is over for the litigants, the judge and
the jury, the witnesses will still live in the middle of the lion’s den.The
gang members know that.The witnesses know that. Using gang evi-
dence, prosecutors must let the jury know that.
Gang evidence is admissible to explain witnesses’ conduct on the other

side of the table as well. Seldom do prosecutors receive a full witness list
from the defense before trial. More commonly, the prosecutors are stand-
ing at counsel table to “rest their case” when the defense attorney hands
them a list of new witnesses who will be testifying for the defendant. In
a gang case, those witnesses are often fellow gang members who are
called to provide an alibi for the defendant. However, courts have provid-
ed prosecutors with the tools to rebut this eleventh-hour evidence. Gang

evidence is admissible to explain this type of witness’s motivation to tes-
tify for the defendant. An expert is permitted to explain that in the gang
culture, loyalty is preeminent. Indeed, when a gang member is accused of
a crime, the gang culture dictates that fellow members will come forward
to assist him, even if it means providing perjurious testimony. A word of
caution is appropriate, however: gang evidence should not be used for
this purpose alone if the witness whom the prosecutor is trying to
impeach has an independent relationship with the defendant other than
that of common gang membership.The use of evidence for this purpose
has been held reversible error.
To Explain Gang Life

Once the prosecutor decides that gang evidence will play a seminal role
in his or her trial, the door is opened to a plethora of useful information
about gang life.
Why Do Gang Members Join Gangs?
Proper inquiries for the gang expert run the gamut.Why do people join
gangs in the first place? What are the perceived benefits of joining a
gang? Are there consequences for refusing to join? The latter is a favorite
fallback position for the defense.That is, the defendant had no choice but
to join the gang.While most gang experts will agree that aggressive
recruiting into gangs is common, individual gang members must make
the choice to join. Indeed, most gangs require a specific demonstration of
loyalty to the gang, like committing a violent crime, or being “jumped
in”—fighting a group of active members. If these acts are not accom-
plished, the applicant will be denied entry into the gang. Gang member-
ship is a choice, plain and simple.
Will the Real Defendant Please Stand Up?
Perhaps the most crucial element of a successful prosecution is introduc-

ing the jury to the real defendant. Invariably, by the time the jury sees the
defendant at trial, his hair has grown out to a normal length, his clothes
are nicely tailored, and he will have taken on the aura of an altar boy. But
15
the real defendant is a criminal wearing a do-rag and throwing a gang

sign. Gang evidence can take a prosecutor a long way toward introducing
the jury to that person.Through photographs, letters, notes, and even
music lyrics, prosecutors can invade and exploit the defendant’s true per-
sonality. Gang investigators should focus on these items of evidence dur-
ing search warrants and arrests.
Tattoos are another rich source of insight into the personality of the
defendant.The accused will appear in court wearing a high-collared,
long-sleeved shirt.There is a reason for that: to hide tattoos that profile
his gang affiliation and prove his loyalty. It is well within the purview of
the prosecutor in a gang case, however, to investigate those tattoos and
reveal them to the trier of fact.Without question, one of the most dra-
matic and powerful
moments in trial occurs
when the prosecutor asks
the judge to instruct the
defendant to stand and
remove his shirt, exposing a
large, gothic script tattoo
across his stomach, reading,
“BLOOD KILLER.”
Turf,Territory, and Membership
Another proper subject matter for the gang expert is an explanation of

the territory claimed by the gang, often referred to as “turf.”The gang
expert can provide valuable insight into the importance of territoriality
to a gang and explain the relationship among drugs, money, guns and
turf.That is, gangs claim territory to create a safe haven for drug sales.
The more territory they claim, the safer they feel, and the more street
corners they can utilize for drug sales.The more drugs they sell, the
more money they generate.The more money they generate, the greater
their buying power for guns.The more guns they acquire, the better their
chance of expanding their territory, and so on. Most gang experts agree
that territory is the keystone that holds gangs together. Not unlike the
geopolitics among warring nations, gangs will fight and kill for territory
they perceive to be their own.
Since there are no official maps delineating gang borders, prosecutors

must rely on evidence of points of conflict: graffiti—termed “the
newspaper of the street”—and gang members’ statements in order to
17
define a gang’s territory. Gang investigators are the best source of such
information.
Intertwined with information concerning territory is information con-

cerning gang membership. Most gangs consist of cliques and sub-cliques
which define the loyalties and conflicts that exist on the street. All too
often, a gang will split into separate factions that begin to war with one
another. Resulting struggles over territory, power and prestige will take
over the neighborhood.When the tensions turn violent, innocent victims
are caught in the crossfire.Therefore, the gang culture surrounding mem-
bership, loyalties and broken alliances may become an important factor in
a gang prosecution.
G E T R E A DY F O R T H E F I G H T :
GREASING THE SKIDS
Gang violence on the streets is pervasive; the same cannot be said for
gang evidence in the courtroom.While many courts are getting used to
gang evidence as a relevant and proper subject for criminal trials, others
still balk at the idea. Before diving headlong into a trial in which they
intend to use gang evidence, prosecutors should take steps to prepare the
court.
First and foremost, inform the defense through the discovery process of
the prosecution’s intent to introduce gang evidence.The defendant will,
thereafter, be prevented from arguing that he was ill-prepared to defend
against such evidence. Moreover, it is prudent to present the court with a
brief outlining the prosecution’s plan to present gang evidence and the
reasons for it.This tactic will educate the court on the law surrounding
the issues, and give the court ample opportunity to get comfortable with
the idea that the admission of such evidence will not result in reversible
error. It is also helpful to include in the brief proposed jury voir dire
questions on gangs and gang membership. Jury selection is a frequently
underestimated tool that can be used to educate the jury before the pros-
ecutor presents the first piece of evidence.4
Witness Problems in Gang Cases
Several categories of witnesses can create serious problems in a gang case.

The “normal citizen” witness is a person who is unaffiliated with any
gang, but happens to be in the wrong place at the wrong time. Such a
witness is generally extremely fearful of gang retaliation because he or
she often lives on claimed gang turf.This witness’s fear is legitimate, and
the prosecutor will have a difficult time assuaging that fear. Factors like
property ownership, community ties and employment make relocation
extremely difficult or impossible. It is important never to make promises
or guarantees to this witness concerning safety that cannot be backed up.
The prosecutor’s relationship with the normal citizen witness will span
4 See Appendix B for sample voir dire questions.
19
the duration of the case; if the witness believes that the prosecutor is not
completely honest about the possibilities of retaliation or intimidation,
the prosecutor will lose credibility. Explain to this witness that while
safety cannot be absolutely guaranteed, steps can be taken to reduce the
possibility of retaliatory violence.Work with the witness, and above all
else, be empathetic to his or her position.
Another type of witness the prosecutor may face is a victim who belongs
to the defendant’s rival gang.This witness will likely be uncooperative
because of the gang code that regulates members. Even if this witness
identified the defendant as the perpetrator at the time of the crime, do
not expect his cooperation at the trial.This witness will lie on the wit-
ness stand, because if he cooperates he will be labeled a snitch. In many
gangs, snitching—even against a rival gang member—is a zero tolerance
offense.
Additionally, a prosecutor may be forced to rely on a member of the

defendant’s own gang.This witness will be problematic from the start. He
will seek to protect the defendant at every stage and actively sabotage the
prosecution’s case. More often than not, this witness will be announced at
the last minute by the defense as an alibi witness. It is a good idea at the
start of the case to interview as many of the defendant’s close associates as
possible, to forestall any last-minute contrived alibi testimony.
Finally, the gang prosecutor’s best witness may be sitting at the other end
of the table.The facts of the case may dictate that the prosecutor utilize a
co-defendant as a government witness. Securing this witness’s testimony
will likely require an offer of leniency or immunity. In that case, the
terms of the agreement should be in writing. Additionally, if the witness
is in custody, the prosecutor will be responsible for the witness’s safety
behind bars.That responsibility will include protective custody, special
transport, and similar measures to separate the defendant from the wit-
ness. Be aware that jurors will view this witness with distrust.The prose-
cutor’s case should be shored up accordingly.
Because these witnesses are frequently unavailable at trial, it is advisable

to memorialize the witness’s testimony before trial.This can be accom-
G E T R E A DY F O R THE FIGHT: GREASING THE SKIDS
plished via the preliminary hearing, through a conditional examination,

or by a recorded statement under oath.5 In the event the witness
becomes unavailable, the prosecutor can rely on the previous testimony.
California’s STEP Act as a Model
The easiest way to get gang evidence admitted in trial is by filing a sub-
stantive gang crime or gang enhancement allegation. Many jurisdictions,
recognizing the growing problem, have codified laws directed at gang
membership.6 Many others, however, have not.The following examines
California’s answer to the gang epidemic, and hopefully provides a model
for those jurisdictions that have yet to address the issue.
In 1988 the California legislature enacted emergency legislation known

as the Street Terrorism Enforcement and Prevention (STEP) Act. The
STEP Act was made permanent in 1997. In 2000, the Act was amended
to substantially increase punishments for gang crimes and enhancements.
The STEP Act contains two main parts. Section (a) created a substantive
crime of knowing participation and willful furtherance of felonious con-
duct by members of a criminal street gang.7 Section (b) is an enhance-
ment that applies to any felony or misdemeanor committed for the ben-
efit of a criminal street gang.8 Because of its much broader use in
California, this discussion will focus on the (b) enhancement, rather than
the (a) substantive crime.
Because the STEP Act’s (b) enhancement applies to any felony and any
misdemeanor, it wields extraordinary power.The prosecutor need only
prove that the crime—whatever it was—was committed for the benefit
of, in association with, or at the direction of a criminal street gang.
Indeed, the prosecutor does not even have to prove that the defendant is
a member of the gang, as long as his conduct promotes or benefits the
gang.9
5 Cal. Evid. Code § 1231 (2004).
6 A listing of state gang laws can be found at the Institute for Intergovernmental Research's Web site
located at www.iir.com/nygc/gang-legis/.
7 Cal. Penal Code § 186.22(a) (2004).
8 Cal. Penal Code § 186.22(b) (2004).
9 See CALJIC Criminal 17.24.2, 7th Ed. (2004).
21
To prove the STEP Act enhancement, the prosecutor must prove that the
group the defendant has benefited is, in fact, a criminal street gang. A
“criminal street gang” is defined by the code as
an 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 of the criminal acts
enumerated in paragraphs (1) to (25), inclusive, of [Penal Code §
186.22] subdivision (e), 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.10
Although the definition appears convoluted, when broken down elemen-

tally it is relatively simple: 1) any ongoing organization of three or more
people, 2) with a common sign or symbol, 3) with one of its primary
activities being the commission of one of 25 specified crimes, and 4)
which engages in a pattern of criminal gang activity.With very simple
questions, the prosecutor can elicit from a gang expert testimony that
will prove each of these elements.11
The primary element of proof involves a determination of which 25

felonies qualify as predicate acts under the STEP Act.The legislature
included the most serious crimes one can think of: murder, manslaughter,
rape, arson, assault with a deadly weapon, burglary, robbery, kidnapping,
torture, mayhem, carjacking, and the like. Additionally, most drug offens-
es, excluding straight possession, are included.Thus, as long as the prose-
cutor can establish through prior convictions12 that members of the
defendant’s gang have committed two or more of these crimes within
three years of the defendant’s crime, the element is proved.
The prosecutor must then define a “pattern of criminal gang activity.”

Again, the legislature provided a definition:
10 Id.
11 People v.Valdez, 58 Cal.App.4th 494, 506 (1997).
12 Although a conviction is not necessary to establish this element, it is the easiest way to prove it.
the commission of, attempted commission of, conspiracy to

commit, or solicitation of, sustained juvenile petition for, or con-
viction of two or more [listed] offenses [same 25 to choose
from], provided at least one of these offenses occurred after the
effective date of this chapter [September 23, 1988] and the last of
those offenses occurred within three years after a prior offense,
and the offenses were committed on separate occasions, or by
two or more persons...13
In other words, the prosecutor must prove that members from the defen-
dant’s gang committed two or more predicate offenses on separate occa-
sions or two or more gangsters committed two separate crimes at the
same time.14 The only stipulation is that the crimes must be within three
years of one another.
Although the gang enhancement takes a few extra steps to prove, the
result at sentencing makes it all worthwhile. Under the STEP Act, a
garden-variety felony, which normally carries a sentence range of 16
months to three years (depending on aggravating or mitigating evi-
dence), is enhanced to carry an additional two to four years. If the felony
is “serious” (as defined by the California Penal Code), five years are
added to the sentence. If the felony is “violent” (as defined by the
California Penal Code), 10 years are added. Certain crimes such as car-
jacking, home invasion robbery, and shooting from a vehicle causing
injury carry life terms with the inclusion of the enhancement. Indeed,
because of its prevalent use by gang members, witness intimidation car-
ries a life sentence under the STEP Act enhancement.
An examination of California’s gun use law provides a final example of

the power of the STEP Act. By way of illustration, assume the defendant
is the driver of a car involved in a drive-by shooting wherein the victim
is severely injured. Ordinarily, the driver of the car would be prosecuted
as an aider and abettor in the drive-by. If the driver were convicted of
attempted murder, he would face a maximum punishment of 10 years in
state prison (nine years for attempted murder, plus one year for a princi-
13 Id.
14 People v. Louen (1997) 17 Cal.4th 1, 10-11.
23
pal armed allegation).The shooter, on the other hand, would face a life
sentence with a minimum eligibility for parole after 25 years because of
his personal use of the gun (see Cal. Penal Code § 12022.53(d)).
Conversely, if the prosecutor pleads and proves the STEP Act gang
enhancement, the “personal gun use” enhancement attaches to all princi-
pals in the crime, including aiders and abettors.That means the driver,
shooter, even the gangster who threw a gang sign from the window of
the car, are all facing 25 years to life.
Such sentencing schemes have a chilling effect on gang members. It does

not take long for word to reach the streets that gang members who never
even touched the gun, let alone fired it, are facing life sentences. As more
jurisdictions use gang laws to their benefit, the vise will close on gangs
and street terrorism.With consistent prosecutions and sentences, gang
members will begin to decide the price is simply too high for their cho-
sen lifestyle.
Getting the Most Out of the Gang Expert
Among the most important decisions a gang prosecutor can make during
trial preparation is who to call as the expert. Most essential, the expert
chosen must have an intimate and working personal knowledge of the
defendant’s gang. Insubstantial and passing knowledge of a gang gleaned
from sources other than personal contact with its members will not
impress the jury. After all, the expert will be asked to talk about the sto-
ried history of the gang, as well as subjective matters such as the gang’s
primary activities, code of conduct, and territory. For these reasons, it is
imperative that the expert be able to show that his opinions are based on
a personal history with the gang.
It is less important that the gang expert know the defendant personally.
The defendant’s affiliation with the gang is often borne out by objective
evidence such as tattoos, field identification cards revealing associations,
and self-admissions to other officers. It is helpful, however, if the expert
knows not only the gang in general, but the defendant himself. If the
prosecutor sees fit, there is no prohibition against using multiple
experts—one who is intimately familiar with the gang, and another who
knows the defendant personally.While some may argue that multiple

experts can lead to inconsistent testimony, a tandem of experts can be
very effective if both are well prepared and knowledgeable.
As soon as the expert takes the witness stand, the jury will begin to make
personal judgments, examining the expert’s demeanor, appearance and
articulation to begin forming an opinion and assigning credibility. If the
expert appears tentative and unsure, the jury will notice. If the expert is
brash and presumptuous, that will show as well. It is important for the
expert to strike a balance between confidence and modesty to enhance
his or her credibility and persuasion with the jury.
Keep in mind that the jury will be asked to believe the opinion of the
expert, a person they have never heard of and have never met. Most of
their impression will be based on the expert’s qualifications, as drawn out
by the prosecutor.Those qualifications will be the foundation upon
which the rest of the expert’s testimony will be based. If they are slight,
vague or otherwise unimpressive, the jury will disregard the expert’s
opinion. If, on the other hand, the qualifications are notable and well
articulated, the jury will follow the expert’s lead. Accordingly, the prose-
cutor should work with the expert in advance to formulate a concise
series of questions to most effectively highlight the expert’s qualifications.
Moreover, the prosecutor should brainstorm with the expert in an effort
to uncover qualifications that may have been overlooked. Contacts with
gang members in jail facilities and on the streets, gang investigations, exe-
cutions of search warrants on gang members’ homes and cars, intelligence
gathering with other officers, and sharing of gang information with
other agencies are some of the points the expert should focus on when
explaining his or her qualifications. Moreover, the number of years the
expert has worked in the area and the number of times he or she has
qualified as an expert in the past are both factors that will impress a jury.
Once the witness is qualified as a gang expert, the question becomes,

“What is the proper subject matter for the expert?”The simple answer is,
“All the juicy stuff.”The expert is the witness who will identify the
defendant as a gang member. From the witness stand, the expert can
establish the defendant’s gang affiliation in several ways, including the
25
defendant’s admission of membership to the expert, the defendant’s tat-

toos, and his consistent association with other gang members.The expert
can also relate the defendant’s gang’s rivalries in the community, as well as
the gang’s history and structure.The meaning of tattoos as more than
identifiers of gang membership is proper subject matter for a gang
expert, as well as the interpretation of graffiti, gang slang and gang
monikers.The expert may also explain the gang’s criminal tactics, culture,
and habits. Remember, the expert is giving opinions.There are no
“wrong” answers.
The crux of the gang expert’s testimony, however, will come in the form
of answers to the hypothetical question.The hypothetical as seen through
the eyes of the expert will be the culmination of the prosecutor’s gang
evidence. If there is a gang allegation included in the charges, the expert
will render an opinion, based on the facts presented by the prosecutor, as
to whether the crime committed benefited or promoted a criminal street
gang. If no specific gang allegation is charged, but rather the prosecutor
has introduced gang evidence to prove intent, motive or identity, for
instance, the hypothetical should be tailored to that point, and the expert
can then direct the jury to the facts that prove it.
The hypothetical question is a powerful tool that prosecutors can and

should use to their advantage. It should be viewed as a free bite at the
apple—an opportunity to set out the facts of the case the way the prose-
cutor wants the jury to see them.Therefore, because the prosecutor will
recite the facts most productive to his or her case, the hypothetical ques-
tion should be viewed as a mini closing argument. Because of the persua-
sive power of the hypothetical question, the gang expert should be called
to the stand as close to the end of the prosecutor’s case as possible.The
more often the jury hears the evidence couched in the prosecutor’s terms,
the more persuasive it will be. Coupling the hypothetical with the closing
arguments means that the jury will hear the prosecutor’s version of the
facts three times, versus the defense attorney’s single argument.
Once again, however, it bears mentioning that a proper evidentiary foun-

dation is everything.The expert’s opinion of the prosecutor’s hypothetical
question is only as good as the foundation upon which it is based. It is
incumbent on the expert to explain in detail the bases of his or her

opinion. And, as with any expert, the bases can be almost anything.
Otherwise inadmissible evidence—hearsay, for instance—can be the
proper basis for an expert’s opinion. For example, experts can base their
opinions on the defendant’s statements, other gangsters’ statements, the
review of graffiti or photographs of graffiti, conversations with other
police officers, the review of prior police reports, and centralized com-
puter database records. However, anything upon which the gang expert
relies is subject to discovery. Gang intelligence files, therefore, may
become discoverable if the expert does not track the original source of
the information contained in the case file or database. If internal intelli-
gence files are turned over to the defense, ongoing investigations could
very well be compromised. Advise the expert to follow up on informa-
tion uncovered in gang intelligence files to independently corroborate
the facts so that only the original source information is discoverable.15
15 See Appendix C for proposed expert questions.
27
CLOSING REMARKS
Every day in jurisdictions across the country, gang problems persist.

Where gang members were once viewed as nuisances with spray cans,
they are now roving bands of criminals with AK-47 assault rifles.Where
gang violence was once seen as sporadic and occasional, it has now grad-
uated to a full-blown epidemic. In 2000, in Los Angeles County, a stag-
gering 44.8 percent of all homicides reported were gang-related. Other
jurisdictions are beginning to see similar numbers.With the gang wars
raging, there is a dire need to address the problem in the courtrooms.
Only with the severest of penalties and the swiftest of punishments will
gang members on the streets begin to feel the force of the law. Only
with the dedication of prosecutors and investigators will those penalties
and punishments be enforced.The burden rests squarely on the govern-
ment’s shoulders. Marshalling gang evidence at trial should be on every
prosecutor’s mind.The legislatures and the courts have provided the
tools; it is now up to the men and women who represent the People to
use them.
Alan Jackson may be reached at the Los Angeles County District Attorney’s Office
at 310.603.7474.
29
APPENDIX A
California STEP Act: Penal Code Section 186.20 – 186.22
186.20. This chapter shall be known and may be cited as the “California
Street Terrorism Enforcement and Prevention Act.”
186.21. The Legislature hereby finds and declares that it is the right of
every person, regardless of race, color, creed, religion, national origin, gen-
der, age, sexual orientation, or handicap, to be secure and protected from
fear, intimidation, and physical harm caused by the activities of violent
groups and individuals. It is not the intent of this chapter to interfere with
the exercise of the constitutionally protected rights of freedom of expres-
sion and association.The Legislature hereby recognizes the constitutional
right of every citizen to harbor and express beliefs on any lawful subject
whatsoever, to lawfully associate with others who share similar beliefs, to
petition lawfully constituted authority for a redress of perceived griev-
ances, and to participate in the electoral process.The Legislature, howev-
er, further finds that the State of California is in a state of crisis which
has been caused by violent street gangs whose members threaten, terror-
ize, and commit a multitude of crimes against the peaceful citizens of
their neighborhoods.These activities, both individually and collectively,
present a clear and present danger to public order and safety and are not
constitutionally protected.The Legislature finds that there are nearly 600
criminal street gangs operating in California, and that the number of
gang-related murders is increasing.The Legislature also finds that in Los
Angeles County alone there were 328 gang-related murders in 1986, and
that gang homicides in 1987 have increased 80 percent over 1986. It is
the intent of the Legislature in enacting this chapter to seek the eradica-
tion of criminal activity by street gangs by focusing upon patterns of
criminal gang activity and upon the organized nature of street gangs,
which together, are the chief source of terror created by street gangs.The
Legislature further finds that an effective means of punishing and deter-
ring the criminal activities of street gangs is through forfeiture of the
profits, proceeds, and instrumentalities acquired, accumulated, or used by
street gangs.
31
186.22. (a) Any person who actively participates in any criminal street
gang with knowledge that its members engage in or have engaged in a
pattern of criminal gang activity, and who willfully promotes, furthers, or
assists in any felonious criminal conduct by members of that gang, shall
be punished by imprisonment in a county jail for a period not to exceed
one year, or by imprisonment in the state prison for 16 months, or two
or three years.
(b) (1) Except as provided in paragraphs (4) and (5), any person who is
convicted of a felony committed for the benefit of, at the direction of, or
in association with any criminal street gang, with the specific intent to
promote, further, or assist in any criminal conduct by gang members,
shall, upon conviction of that felony, in addition and consecutive to the
punishment prescribed for the felony or attempted felony of which he or
she has been convicted, be punished as follows:
(A) Except as provided in subparagraphs (B) and (C), the person shall
be punished by an additional term of two, three, or four years at the
court’s discretion.
(B) If the felony is a serious felony, as defined in subdivision (c) of
Section 1192.7, the person shall be punished by an additional term of
five years.
(C) If the felony is a violent felony, as defined in subdivision (c) of
Section 667.5, the person shall be punished by an additional term of 10
years.
(2) If the underlying felony described in paragraph (1) is committed on
the grounds of, or within 1,000 feet of, a public or private elementary,
vocational, junior high, or high school, during hours in which the facility
is open for classes or school-related programs or when minors are using
the facility that fact shall be a circumstance in aggravation of the crime
in imposing a term under paragraph (1).
(3) The court shall order the imposition of the middle term of the sen-
tence enhancement, unless there are circumstances in aggravation or mit-
igation.The court shall state the reasons for its choice of sentencing
enhancements on the record at the time of the sentencing.
(4) Any person who is convicted of a felony enumerated in this para-

graph committed for the benefit of, at the direction of, or in association
with any criminal street gang, with the specific intent to promote, fur-
APPENDIX A
ther, or assist in any criminal conduct by gang members, shall, upon con-
viction of that felony, be sentenced to an indeterminate term of life
imprisonment with a minimum term of the indeterminate sentence cal-
culated as the greater of:
(A) The term determined by the court pursuant to Section 1170 for
the underlying conviction, including any enhancement applicable under
Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any
period prescribed by Section 3046, if the felony is any of the offenses
enumerated in subparagraphs (B) or (C) of this paragraph.
(B) Imprisonment in the state prison for 15 years, if the felony is a
home invasion robbery, in violation of subparagraph (A) of paragraph (1)
of subdivision (a) of Section 213; carjacking, as defined in Section 215; a
felony violation of Section 246; or a violation of Section 12022.55.
(C) Imprisonment in the state prison for seven years, if the felony is
extortion, as defined in Section 519; or threats to victims and witnesses,
as defined in Section 136.1.
(5) Except as provided in paragraph (4), any person who violates this
subdivision in the commission of a felony punishable by imprisonment
in the state prison for life, shall not be paroled until a minimum of 15
calendar years have been served.
(c) If the court grants probation or suspends the execution of sentence
imposed upon the defendant for a violation of subdivision (a), or in cases
involving a true finding of the enhancement enumerated in subdivision
(b), the court shall require that the defendant serve a minimum of 180
days in a county jail as a condition thereof.
(d) Any person who is convicted of a public offense punishable as a
felony or a misdemeanor, which is committed for the benefit of, at the
direction of or in association with, any criminal street gang with the spe-
cific intent to promote, further, or assist in any criminal conduct by gang
members, shall be punished by imprisonment in the county jail not to
exceed one year, or by imprisonment in the state prison for one, two, or
three years, provided that any person sentenced to imprisonment in the
county jail shall be imprisoned for a period not to exceed one year, but
not less than 180 days, and shall not be eligible for release upon comple-
tion of sentence, parole, or any other basis, until he or she has served 180
days. If the court grants probation or suspends the execution of sentence
imposed upon the defendant, it shall require as a condition thereof that
33
the defendant serve 180 days in a county jail.

(e) As used in this chapter, “pattern of criminal gang activity” means the
commission of, attempted commission of, conspiracy to commit, or solic-
itation of, sustained juvenile petition for, or conviction of two or more of
the following offenses, provided at least one of these offenses occurred
after the effective date of this chapter and the last of those offenses
occurred within three years after a prior offense, and the offenses were
committed on separate occasions, or by two or more persons:
(1) Assault with a deadly weapon or by means of force likely to pro-
duce great bodily injury, as defined in Section 245.
(2) Robbery, as defined in Chapter 4 (commencing with Section 211)
of Title 8 of Part 1.
(3) Unlawful homicide or manslaughter, as defined in Chapter 1 (com-
mencing with Section 187) of Title 8 of Part 1.
(4) The sale, possession for sale, transportation, manufacture, offer for
sale, or offer to manufacture controlled substances as defined in Sections
11054, 11055, 11056, 11057, and 11058 of the Health and Safety Code.
(5) Shooting at an inhabited dwelling or occupied motor vehicle, as
defined in Section 246.
(6) Discharging or permitting the discharge of a firearm from a motor
vehicle, as defined in subdivisions (a) and (b) of Section 12034.
(7) Arson, as defined in Chapter 1 (commencing with Section 450) of
Title 13.
(8) The intimidation of witnesses and victims, as defined in Section
136.1.
(9) Grand theft, as defined in subdivision (a) or (c) of Section 487.
(10) Grand theft of any firearm, vehicle, trailer, or vessel.
(11) Burglary, as defined in Section 459.
(12) Rape, as defined in Section 261.
(13) Looting, as defined in Section 463.
(14) Money laundering, as defined in Section 186.10.
(15) Kidnapping, as defined in Section 207.
(16) Mayhem, as defined in Section 203.
(17) Aggravated mayhem, as defined in Section 205.
(18) Torture, as defined in Section 206.
(19) Felony extortion, as defined in Sections 518 and 520.
(20) Felony vandalism, as defined in paragraph (1) of subdivision (b) of
APPENDIX A
Section 594.
(21) Carjacking, as defined in Section 215.
(22) The sale, delivery, or transfer of a firearm, as defined in Section
12072.
(23) Possession of a pistol, revolver, or other firearm capable of being
concealed upon the person in violation of paragraph (1) of subdivision
(a) of Section 12101.
(24) Threats to commit crimes resulting in death or great bodily injury,
as defined in Section 422.
(25) Theft and unlawful taking or driving of a vehicle, as defined in
Section 10851 of the Vehicle Code.
(f) As used in this chapter, “criminal street gang” means any ongoing
organization, association, or group of three or more persons, whether
formal or informal, having as one of its primary activities the commis-
sion of one or more of the criminal acts enumerated in paragraphs (1) to
(25), inclusive, of subdivision (e), having a common name or common
identifying sign or symbol, and whose members individually or collec-
tively engage in or have engaged in a pattern of criminal gang activity.
(g) Notwithstanding any other law, the court may strike the additional
punishment for the enhancements provided in this section or refuse to
impose the minimum jail sentence for misdemeanors in an unusual case
where the interests of justice would best be served, if the court specifies
on the record and enters into the minutes the circumstances indicating
that the interests of justice would best be served by that disposition.
(h) Notwithstanding any other provision of law, for each person com-
mitted to the Youth Authority for a conviction pursuant to subdivision
(a) or (b) of this section, the offense shall be deemed one for which the
state shall pay the rate of 100 percent of the per capita institutional cost
of the Department of Youth Authority, pursuant to Section 912.5 of the
Welfare and Institutions Code.
(i) In order to secure a conviction, or sustain a juvenile petition, pur-
suant to subdivision (a), it is not necessary for the prosecution to prove
that the person devotes all, or a substantial part of his or her time or
efforts to the criminal street gang, nor is it necessary to prove that the
person is a member of the criminal street gang. Active participation in
the criminal street gang is all that is required.
35
186.22a. (a) Every building or place used by members of a criminal street

gang for the purpose of the commission of the offenses listed in subdivi-
sion (e) of Section 186.22 or any offense involving dangerous or deadly
weapons, burglary, or rape, and every building or place wherein or upon
which that criminal conduct by gang members takes place, is a nuisance
which shall be enjoined, abated, and prevented, and for which damages
may be recovered, whether it is a public or private nuisance.
(b) Any action for injunction or abatement filed pursuant to subdivision
(a), including an action filed by the Attorney General, shall proceed
according to the provisions of Article 3 (commencing with Section
11570) of Chapter 10 of Division 10 of the Health and Safety Code,
except that all of the following shall apply:
(1) The court shall not assess a civil penalty against any person unless
that person knew or should have known of the unlawful acts.
(2) No order of eviction or closure may be entered.
(3) All injunctions issued shall be limited to those necessary to protect
the health and safety of the residents or the public or those necessary to
prevent further criminal activity.
(4) Suit may not be filed until 30-day notice of the unlawful use or
criminal conduct has been provided to the owner by mail, return receipt
requested, postage prepaid, to the last known address.
(c) Whenever an injunction is issued pursuant to subdivision (a), or
Section 3479 of the Civil Code, to abate gang activity constituting a nui-
sance, the Attorney General may maintain an action for money damages
on behalf of the community or neighborhood injured by that nuisance.
Any money damages awarded shall be paid by or collected from assets of
the criminal street gang or its members that were derived from the crim-
inal activity being abated or enjoined. Only persons who knew or should
have known of the unlawful acts shall be personally liable for the pay-
ment of the damages awarded. In a civil action for damages brought pur-
suant to this subdivision, the Attorney General may use, but is not limit-
ed to the use of, the testimony of experts to establish damages suffered
by the community or neighborhood injured by the nuisance.The dam-
ages recovered pursuant to this subdivision shall be deposited into a sepa-
rate segregated fund for payment to the governing body of the city or
county in whose political subdivision the community or neighborhood is
located, and that governing body shall use those assets solely for the ben-
APPENDIX A
efit of the community or neighborhood that has been injured by the

nuisance.
(d) No nonprofit or charitable organization which is conducting its
affairs with ordinary care or skill, and no governmental entity, shall be
abated pursuant to subdivisions (a) and (b).
(e) Nothing in this chapter shall preclude any aggrieved person from
seeking any other remedy provided by law.
(f) (1) Any firearm, ammunition which may be used with the firearm,
or any deadly or dangerous weapon which is owned or possessed by a
member of a criminal street gang for the purpose of the commission of
any of the offenses listed in subdivision (e) of Section 186.22, or the
commission of any burglary or rape, may be confiscated by any law
enforcement agency or peace officer.
(2) In those cases where a law enforcement agency believes that the
return of the firearm, ammunition, or deadly weapon confiscated pur-
suant to this subdivision, is or will be used in criminal street gang activity
or that the return of the item would be likely to result in endangering
the safety of others, the law enforcement agency shall initiate a petition
in the superior court to determine if the item confiscated should be
returned or declared a nuisance.
(3) No firearm, ammunition, or deadly weapon shall be sold or
destroyed unless reasonable notice is given to its lawful owner if his or
her identity and address can be reasonably ascertained.The law enforce-
ment agency shall inform the lawful owner, at that person’ s last known
address by registered mail, that he or she has 30 days from the date of
receipt of the notice to respond to the court clerk to confirm his or her
desire for a hearing and that the failure to respond shall result in a default
order forfeiting the confiscated firearm, ammunition, or deadly weapon
as a nuisance.
(4) If the person requests a hearing, the court clerk shall set a hearing
no later than 30 days from receipt of that request.The court clerk shall
notify the person, the law enforcement agency involved, and the district
attorney of the date, time, and place of the hearing.
(5) At the hearing, the burden of proof is upon the law enforcement
agency or peace officer to show by a preponderance of the evidence that
the seized item is or will be used in criminal street gang activity or that
return of the item would be likely to result in endangering the safety of
37
others. All returns of firearms shall be subject to subdivision (d) of

Section 12072.
(6) If the person does not request a hearing within 30 days of the
notice or the lawful owner cannot be ascertained, the law enforcement
agency may file a petition that the confiscated firearm, ammunition, or
deadly weapon be declared a nuisance. If the items are declared to be a
nuisance, the law enforcement agency shall dispose of the items as pro-
vided in Section 12028.
APPENDIX B
Proposed Voir Dire Questions for a Gang Case
The purpose of questioning prospective jurors is to determine whether

those jurors harbor any biases, prejudices or opinions such that they
could not well and truly try the cause pending before the court.To that
end, it is the prosecutor’s responsibility to uncover those biases, prejudices
or opinions.Without question, the issue of street gangs is a hot-button
point for many members of the community.The gang prosecutor, there-
fore, seeks during voir dire to explain some of the terms and concepts that
the jury is expected to encounter during the upcoming trial in order to
reveal potential juror bias.The tangential effect, of course, is to educate
the jury on the law upon which they will be instructed.
The gang prosecutor is saddled with another task, however. Many jurors
will honestly state that they do not like gang members. Defense attorneys
will, therefore, move to excuse those jurors, citing “cause.” If, however,
every juror who dislikes or disapproves of gang members were excused
from the panel, the only jurors left would be other gang members. It is
vitally important for the gang prosecutor to assertively rehabilitate jurors
who offer strong opinions on gangs and gang members. Only then will
the voir dire process truly result in a fair pool of jurors, representative of
the community.
The following proposed questions are merely examples of approaches a

gang prosecutor may take to expose certain jurors’ biases and rehabilitate
others.
Direct the juror’s attention toward the legal definition of a

criminal street gang:
If you were asked to define the term ‘gang,’ how would you do it?
(This is a good opportunity to correct the jurors’ misimpression

of the actual definition.)
39
If the court gave you an instruction that defined ‘criminal street gang,’
would you promise to apply that definition in this case?
Would any of you ignore the court’s definition in favor of your own?
Face the issue head on (then rehabilitate):

Does anyone think that it’s okay to be a gang member?
(A “yes” answer here should immediately bar that juror from the
prosecutor’s case. No amount of rehabilitation or explanation
will suffice.That juror should be gone. Period.)
Does anyone (juror # ____, do you) have negative thoughts toward

gangs or gang members?
(Most will answer in the affirmative.That’s okay. See the next

questions.)
Does everyone agree that it is okay (acceptable) to dislike gangs and

gang members?
(Here, the jurors must be reminded that it is acceptable to dislike

gang members, just as it is acceptable to dislike murderers.The
jurors’ inherent dislike of gang members is not grounds for their
disqualification. Get them used to the idea that gang member-
ship is a bad thing, and it is okay to say so. Jurors are perfectly
qualified to sit on a gang case as long as they agree that they
will not convict the defendant of the crime solely because of his
gang affiliation.The juror should be reminded to listen to the
facts of the case with an open mind, and then apply the law to
those facts.The following questions address these points.)
That you do not like gang members does not mean that you will auto-
matically find the defendant guilty of ____________ crime, does it?
APPENDIX B
If you are not convinced beyond a reasonable doubt that the defendant
committed the crime of ____________, you would not convict him of
that crime just because he is a gang member, would you?
(“No” answers to these questions serve to rehabilitate the juror

who doesn’t like gangsters, yet explain that jurors do not have to
hide from the fact that gang members offend them.)
41
APPENDIX C
Sample Direct Examination for a Gang Expert
Qualifications
What do you do for a living?
How long have you been a police officer?
How long have you been in your current assignment?
Is [Unit Title] a specialized gang unit?
What are your duties as a gang [officer] [detective]?
What education, training and background qualify you to per-

form those duties?
Have you ever lectured or taught classes regarding gangs?

To whom?
Have you ever qualified as a gang expert in the past?
How many times?
In what jurisdiction? In L.A. County, other counties, other states?
Is it part of your job to stay current on gang trends, including

rivalries, alliances, customs, habits?
How do you do this?
Did you ever work the streets, i.e. patrol? Did you talk to gang
members in that setting?
43
Did you ever work county jail? (If Sheriff) Did you talk to gang
members in that setting?
How many times have you come in contact with gang mem-
bers?
Have all your contacts been adversarial in nature?
Describe a typical casual contact you might have with a gang

member.
Have you found that gang members have been forthcoming with
you concerning gang info (i.e. current rivalries, alliances, mem-
bership, etc.)?
Do you typically share information and intelligence with other

police agencies?
Have you been involved with serving search warrants on gang

members’ houses?
Is there valuable gang intelligence that can be derived from the

service of such warrants? Describe.
Gang Culture
What constitutes a “Criminal Street Gang?”
What motivates a person to join a gang?
Once in, do gang members typically just quit?
What does “blood in / blood out” mean?
Does the concept of “respect” have a special significance in the

gang culture?
APPENDIX C
How does a gang member gain respect or prestige in the gang?
What does it mean to “put in work” for the gang?
Does turf or territory have special significance in the gang culture?
Does the term “payback” have special significance in the gang

culture?
How do gangs identify themselves?
Names?
Hand signs?
Graffiti?
Colors?
Monikers?
Your Case
The Defendant’s Gang
Are you familiar with [Gang Name]?
How do you know that gang?
Have you had contacts with that gang and its members?
Describe those contacts in general.
How many members are in [Gang Name]?
Does [Gang Name] have a turf or territory that it claims?
What are those boundaries?
45
Does [Gang Name] have a hand sign or graffiti symbol that sig-
nifies the gang?
Describe those.
What, in your expert opinion, are among the primary activities

of [Gang Name]? (One of the “dirty 25;” P.C. 186.22(e)).
Is the defendant a member of [Gang Name]?
How do you know?
Have you had personal contact with the defendant?
Has the defendant admitted his membership to you? To others?
Does the defendant have any tattoos that indicate his affiliation
with that gang?
Is the defendant still active? How long has he been active?
The Victim’s Gang (if applicable)
Do you know the victim?
Does he belong to any gang?
Does that gang have a turf or territory?
Does the victim’s gang have any rivals? (If the defendant’s gang is
a rival).
Describe the relationship between these two gangs.
Is there a history of violence between these gangs?
APPENDIX C
The Pattern
Do you know [Defendant Name]?
Is he a member of [Defendant’s Gang]?
Was he convicted of a felony? What felony?
When was the offense for which he was convicted? (After

9/26/88, within 3 years of the instant crime).
Was he a member of [Defendant’s Gang] at the time he commit-

ted that crime? (Not necessary, but nice if you have it…)
(Introduce the certified predicate prior conviction.)
The Hypothetical
(Ask the hypothetical question based on your facts—not generic.)
Was this crime committed to promote or benefit [Gang Name]

criminal street gang?
On what do you base your opinion?
47
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Alexandria,Virginia 22314
Phone: (703) 549-4253
Fax: (703) 836-3195
http://www.ndaa-apri.org

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S P E C I A L TO P I C S S E R I E S

Bureau of Justice Assistance

April 2004 Alan Jackson

Modern successful gang prosecutions in Los Angeles County are the

Trying a gang case is one of the most difficult undertakings a prose-

Moreover, gang cases present unique challenges in terms of explaining

1 Cal. Penal Code § 186.21, et. seq. (See Appendix A).

spearheaded the country’s state legislatures’ answer to the growing

Is it easier? Maybe. Is it a better trial technique? Never.

Successful prosecutors do not try their cases in the antiseptic environ-

Gang evidence is highly probative in explaining what takes place on the

Faced with the prospect of defending a case involving gang evidence,

No court in the land disallows evidence against the defendant solely

What Gang Evidence Can Prove:The Tip of the Iceberg

Look at a hypothetical set of facts as told in two different ways, one

Gang evidence is properly admitted to prove motive.The motives for a

Of course, nothing will befuddle a jury—and oftentimes a prosecutor—

Such evidence is ripe for gang experts to explain. Although members of

To Prove Criminal Liability

However, through properly admitted gang evidence, the prosecutor can

expert can testify that a drive-by shooting takes on a special significance

Additionally, the prosecutor may wish to take another approach. Drive-

To Explain Witnesses’ Conduct

Gang evidence is admissible to explain witnesses’ conduct on the other

ed prosecutors with the tools to rebut this eleventh-hour evidence. Gang

To Explain Gang Life

Why Do Gang Members Join Gangs?

Will the Real Defendant Please Stand Up?

Perhaps the most crucial element of a successful prosecution is introduc-

the real defendant is a criminal wearing a do-rag and throwing a gang

Turf,Territory, and Membership

Another proper subject matter for the gang expert is an explanation of

Since there are no official maps delineating gang borders, prosecutors

Intertwined with information concerning territory is information con-

Witness Problems in Gang Cases

Several categories of witnesses can create serious problems in a gang case.

4 See Appendix B for sample voir dire questions.

Additionally, a prosecutor may be forced to rely on a member of the

Because these witnesses are frequently unavailable at trial, it is advisable

plished via the preliminary hearing, through a conditional examination,

California’s STEP Act as a Model

In 1988 the California legislature enacted emergency legislation known

an ongoing organization, association, or group of three or more

Although the definition appears convoluted, when broken down elemen-

The primary element of proof involves a determination of which 25

The prosecutor must then define a “pattern of criminal gang activity.”

the commission of, attempted commission of, conspiracy to

An examination of California’s gun use law provides a final example of

Such sentencing schemes have a chilling effect on gang members. It does

Getting the Most Out of the Gang Expert

knows the defendant personally.While some may argue that multiple

Once the witness is qualified as a gang expert, the question becomes,

defendant’s admission of membership to the expert, the defendant’s tat-

The hypothetical question is a powerful tool that prosecutors can and

Once again, however, it bears mentioning that a proper evidentiary foun-

incumbent on the expert to explain in detail the bases of his or her

15 See Appendix C for proposed expert questions.

Every day in jurisdictions across the country, gang problems persist.

California STEP Act: Penal Code Section 186.20 – 186.22