U.S. Department of Justice

Office of Justice Programs

Office of Juvenile Justice and Delinquency Prevention

Gang Prosecution  

Manual

July 2009 

Copyright 2009 Institute for Intergovernmental Research®. All Rights Reserved. 
Gang Prosecution Manual 

U.S. Department of Justice

Office of Justice Programs

810 Seventh Street NW

Washington DC 20531

Eric H. Holder, Jr.

Attorney General  

Laurie Robinson

Acting Assistant Attorney General/Principal Deputy Assistant Attorney General  

Jeff Slowikowski

Acting Administrator

Office of Juvenile Justice and Delinquency Prevention

This document was prepared by the National Youth Gang Center under Cooperative

Agreement Number 2007‐JV‐FX‐0008 from the Office of Juvenile Justice and

Delinquency Prevention (OJJDP).

The Office of Juvenile Justice and Delinquency Prevention is a component of 

the Office of Justice Programs, which also includes the Bureau of Justice 

Assistance; the Bureau of Justice Statistics, the Community Capacity 

Development Office; the National Institute of Justice; the Office for Victims of 

Crime; and the Office of Sex Offender Sentencing, Monitoring, Apprehending, 

Registering, and Tracking (SMART). Points of view or opinions in this 

document are those of the authors and do not represent the official position or 

policies of the U.S. Department of Justice. 
Gang Prosecution Manual 

Gang Prosecution Manual

July 2009

This document was developed by the National Youth Gang Center.  The following

individuals are authors of various chapters of this document.

Mr. John Anderson, Assistant District Attorney, Orange County District Attorney’s

Office, Supervisor of the TARGET Gang Unit, Santa Ana, CA

Sergeant Mark Nye, Westminster Police Department, Westminster, CA

Mr. Ron Freitas, Chief Deputy District Attorney of the Homicide‐Gang Division, San

Joaquin County District Attorney’s Office, Stockton, CA

Mr. Jarrett Wolf, President, the Law Firm of Jarrett Wolf, former Assistant State

Attorney and DEA Agent in Miami, FL.   
Gang Prosecution Manual 

i Table of Contents 

Table of Contents

Introduction...................................................................................................................................1

Section 1: Investigating the Gang Case:  Law Enforcement’s Impact on

Successful Prosecution ...........................................................................................4

Introduction...................................................................................................................5

Gang Member Identification and Documentation...................................................5

Legal Consideration in Obtaining Gang Records .................................................... 7

Gang Books, School Yearbooks, and Other Resources............................................9

Field Interview Cards ................................................................................................11

Crime and Incident Reports......................................................................................13

Gang Databases:  Storing and Retrieving Gang Records......................................14

Gang Database Legal Considerations...................................................................... 16

Gang Search Warrants ............................................................................................... 18

Use of Informants and the Need for an Informant Policy .................................... 20

Confidentiality Issues ................................................................................................ 22

Gang Search Warrant and Affidavit Language......................................................22

Section 2: Gang Group Crime Theories of Liability and Investigation  

Considerations:  Why the Liability Net Gets Thrown Over So Many ............27

Introduction................................................................................................................. 27

Group Crime Dangers................................................................................................ 29

Teenage Group Crime Dangers................................................................................ 31

Gang Group Crime Dangers ..................................................................................... 31

Basic Concepts of Group Criminal Liability........................................................... 32

Investigation Considerations .................................................................................... 33

Extended Liability From Group Crime Participation............................................ 40

Conclusion................................................................................................................... 42

References .................................................................................................................... 42

Section 3: Filing the Gang Case.............................................................................................43

Introduction................................................................................................................. 43

Preparing to File the Gang Case............................................................................... 44

Directing Further Investigations .............................................................................. 46

Juvenile or Adult Prosecution .................................................................................. 48
Gang Prosecution Manual 

ii Table of Contents 

Section 3: Filing the Gang Case (Continued)

Criminal Liability ....................................................................................................... 48

Aiding and Abetting .................................................................................................. 49

Conspiracy................................................................................................................... 51

Natural and Probable Consequences Liability....................................................... 54

Theories Specific to Murder...................................................................................... 56

The Felony Murder Rule ........................................................................................... 56

Provocative Act Murder............................................................................................ 57

Concurrent Causation................................................................................................ 58

Conclusion................................................................................................................... 59

Section 4: Presentation of the Case ......................................................................................60

Introduction................................................................................................................. 60

Witnesses ..................................................................................................................... 61

Gang Evidence ............................................................................................................ 69

The Jurisprudence of Gang Prosecution .................................................................71

Litigating the Admissibility of Gang Evidence...................................................... 76

Admissibility of Gang Expert Testimony ............................................................... 78

Qualifying the Gang Expert...................................................................................... 79

Jury Selection............................................................................................................... 82

Conclusion................................................................................................................... 86

Section 5: Sentencing Issues in Gang Cases ........................................................................88

Introduction................................................................................................................. 88

Types of Crimes .......................................................................................................... 89

Alternatives to Criminal Filings and Diversion Programs................................... 90

Filing Decision ............................................................................................................ 91

Method of Conviction................................................................................................ 94

Probation Hearings .................................................................................................. 100

Parole Considerations .............................................................................................. 100

Conclusion................................................................................................................. 101

References .................................................................................................................. 102

Exhibit 1: Superior Court of California, County of Orange, Advisement and  

Waiver of Rights for a Felony Guilty Plea, F026‐412.6 (R10/04).................103

Exhibit 2: Defendant’s Waiver of Constitutional Rights for Guilty Plea

to Misdemeanor, F0232‐330.11 (3/88) ...............................................................109

Exhibit 3: Attachment No. 1, Factual Basis for Plea of Guilty......................................112

Exhibit 4: Adult, Orange County Probation Department, Gang Terms and  

Conditions of Probation ....................................................................................114
Gang Prosecution Manual 

1 Introduction 

Introduction

The National Youth Gang Center estimates that there were approximately

778,000 gang members and 27,000 gangs active in more than 3,550 jurisdictions served

by city and county law enforcement agencies in 2007.

Gangs remain a serious problem in the United States, and local prosecutors and

district attorneys play an important role in addressing gang‐related violence.  The vast

majority of violent gang‐related crimes will be prosecuted at the local level by

prosecutors in agencies where budgets are tight and resources for training are often

minimal.

Gang‐related crimes are, by their very nature, more difficult to prosecute than

other sorts of crimes—full of interconnected relationships and complex dynamics

between rival gangs.    Today’s gang member victim may be tomorrow’s perpetrator.  

Witnesses and juries may be intimidated by the inherent and implied threat of violence

from a gang‐involved defendant.  The awareness and sophistication of court employees

and judges in dealing with gangs vary from place to place.    Further, successful

prosecution of a gang case may require expert testimony to help the jury understand

the complicated cultural issues that are foundational to gang‐related crime.    Trying

gang‐related cases takes time, preparation, and knowledge.

For those reasons, this publication has been prepared to bring together

information on the basics of gang crime prosecution at the local level.    This is a

workbook designed to help local prosecutors and investigators visualize and prepare

for every step of a gang‐related crime prosecution, from the initial crime scene

investigation to preparing and presenting the case and, finally, sentencing issues

specific to gang cases.  This document has been prepared by working prosecutors and

investigators from states with very different legal requirements.    They have years of

experience in dealing with the complexities of violent gang‐related crime.  The intent of

this manual is to assist local prosecutors in holding gang‐involved offenders

accountable for their actions and, ultimately, guarding the community from gangs.

When a gang member has committed a violent act that has caused loss and pain to the

entire community, the goal of effective prosecution should be a finding by a judge that

protects the community and demonstrates an understanding of the negative toll taken

on the victims by these acts:
Gang Prosecution Manual 

2 Introduction 

“Everything I know about gangs tells me that gangs are dedicated to violence and

crime.    And, while there may be a certain brotherhood, it is done only to

perpetuate whatever joy they get from drug abuse, the crimes they commit, the

people they hurt, and the people they bully . . . I really cannot find any reason why I

should not protect this community and keep Mr. Cortes off the street.  He is one of

the links of the chain that goes from the criminality and the violence of gangs, to

our schools and to our community.  This link, I intend to break . . . Mr. Cortes,

this Court hereby sentences you to 25 years in the state prison [for attempted

murder].   The court is departing from the guidelines to do so.   I believe I have

valid legal reasons to do so.  I do not think you have a clue.  I do not know how

else, at this point, to teach you that you have done wrong.”

—The Honorable Maxine Cohen Lando, Circuit Judge, Miami‐Dade

County, Florida, State of Florida v. David Cortes, March 29, 1999.

Section 1:    Investigating the Gang Case:    Law Enforcement’s Impact on Successful

Prosecution

Law enforcement’s preparation for gang‐related crimes is the crux of successful

prosecution.    This section includes information on every aspect of law

enforcement/prosecution cooperation, including police documentation of gang

affiliation and activity, legal considerations in obtaining gang records, resources that

can assist in documenting gang affiliation on the part of defendants, gang databases,

search warrants, and the use of informants.  It is designed for use by both prosecutors

and law enforcement agencies.   A sample gang search warrant and affidavit are also

provided.   

Section 2:  Gang Group Crime Theories of Liability and Investigation Considerations:   

Why the Liability Net Gets Thrown Over So Many

In most instances of gang‐related crime, a complex dynamic of connections exists

between suspects and victims.    The group dynamics of gang‐related crimes and

conspiracy liability are discussed in this section, along with ways that investigators can

respond to crime scenes with multiple participants, gang expert testimony related to

group crimes, and dealing with aiders and abettors to gang‐related crimes.
Gang Prosecution Manual 

3 Introduction 

Section 3:  Filing the Gang Case

In many ways, gang cases are likely to be the most complex cases filed by a

prosecutor.  This section describes preparation for filing the case, further investigation

that may be required, discussion as to whether cases should be filed in juvenile or adult

court, decisions about filing against accomplices/accessories using theories of liability,

and filing issues specific to murder trials.   

Section 4:  Presentation of the Case

Once the case actually gets to trial, a host of unforeseen issues can arise.   This

section deals with anticipating the challenges when presenting gang cases, including

witness issues, presentation of gang evidence, litigating the admissibility of gang

evidence, dealing with gang expert testimony, and jury selection issues specifically

related to gangs.

Section 5:  Sentencing Issues in Gang Cases

From the time the case is filed, sentencing issues should be paramount in the

mind of the prosecutor.  This section addresses sentencing issues during filing, such as

misdemeanors versus felonies, alternatives to criminal filings, how filing in juvenile or

adult court may affect sentencing, sentencing options for gang offenders, conditions of

probation that are appropriate for criminal street gang members, and parole

considerations.   
Gang Prosecution Manual 

4 Section 1.  Investigating the Gang Case

Section 1.

Investigating the Gang Case:

Law Enforcement’s Impact on

Successful Prosecution

By 

John Anderson, Assistant District Attorney 

Orange County District Attorney’s Office 

Supervisor of the TARGET Gang Unit 

Santa Ana, California 

and 

Mark Nye, Sergeant 

Westminster Police Department 

Westminster, California 
Gang Prosecution Manual 

5 Section 1.  Investigating the Gang Case

INTRODUCTION

Successful gang prosecutions are a result of the combined efforts of the district

attorney’s office and the local police gang unit investigators and/or robbery/homicide

investigators handling the investigation.  The strength of a gang case rests almost solely

on the strength of the available gang evidence and the credibility of the gang expert.  

Experienced gang investigators who testify as court‐recognized experts base their

expertise on their knowledge of area gangs (and their enemy counterparts) and gang

methodology, information provided by numerous street contacts, and other gang

records that are properly documented and cataloged.    Consistent and reliable

recordkeeping, therefore, is essential for the successful operation of the gang unit and

its future prosecutorial efforts.

GANG MEMBER IDENTIFICATION  

AND DOCUMENTATION

Without proper documentation of gang contacts, expert opinions lack a basis of

fact that defense attorneys may attack, making it difficult for juries to render verdicts.  

Therefore, gang unit investigators (experts) must have hands‐on street knowledge of

jurisdictional gangs and must develop and maintain up‐to‐date gang records in the

form of field interview cards, police reports, probation and parole records, court

adjudications of prosecutorial efforts, and cataloged photographs of gang members,

tattoos, and graffiti.

Gang investigators conduct regular street patrols; provide probation, parole, and

search warrant services at gang members’ residences; and make arrests for various

violations of law.  All of these contacts need to be documented and cataloged in an in‐

house database, and, when available, state or countywide databases, for other

departments to utilize.   

Patrol officers (first responders) spend a great deal of time on the street; more

than many gang, narcotic, or other detective units.    These patrol officers need to be

tapped for their knowledge and trained in the proper collection and dissemination of

gang information.   Many patrol officers have regular contacts with gang members in

their local areas.  Patrol officers, if trained in proper collection of gang documents (field

interview cards or crime and incident reports), can be an invaluable source to the gang
Gang Prosecution Manual 

6 Section 1.  Investigating the Gang Case

unit.  The more “eyes and ears” the gang unit has on the street, the more information it

will be able to collect, maintain, and store in its gang/intelligence files.   

Gang investigators first and foremost must be familiar with the gang dynamics

in their cities and surrounding jurisdictions.  They need to know the nuances of each

gang; i.e., its racial makeup, territory or lack thereof, affiliate gangs, enemy gangs, use

of tattoos, graffiti, clothing, and its criminal propensities or methods of operation.   

Gang investigators need to know the history of the various gangs indigenous to or

otherwise active in their jurisdictions.    They need to familiarize themselves with the

dynamics of the gangs, including but not limited to their membership size, territory,

local hangouts, rivalries, and types of crimes committed, as well as the identification

and personal and criminal backgrounds of individual members.   

Before gang investigators collect, document, and catalog gang information, it is

important that they  and their  agency have policies and procedures in place regarding

documentation, collection, storage, and use of such records.   Local, state, and federal

restrictions or guidelines on maintaining gang and intelligence files must be upheld for

the successful operation of the unit and its prosecutorial efforts.  Gang unit supervisors

and their investigators must be well‐versed in these policies and procedures to ensure

consistency in records and avoid claims of arbitrary enforcement.  Gang units should

include the entire department in the efficient and ethical collection of gang (documents)

records.    Therefore, gang investigators should take the time to conduct regular

briefings/trainings for patrol officers, detectives, and others in the department

responsible for the collection of gang documents.    New officer orientation with gang

unit detectives is also a good measure to ensure the proper collection of gang

information.   

Efficient and up‐to‐date documentation of gangs and gang members is critical for

gang cases and is the key to the successful prosecution of gang‐related cases.  

Documentation lends credence to the allegation of gang membership, status, and street

presence and provides motives behind gang‐related attacks or other gang behavior.  

Many patrol officers and even gang investigators sometimes have a strong knowledge

of individual gang members with whom they have frequent contact, but because of the

frequency of these contacts, these persons are often not field‐interviewed or the contacts

are not otherwise documented.  Because of this lack of documentation, in court a case

may lack critical documentary evidence of gang membership.  All contacts with gangs

or gang members should, therefore, be documented or memorialized in some fashion.   
Gang Prosecution Manual 

7 Section 1.  Investigating the Gang Case

Hispanic Gang Graffiti on a Resident’s Van 

LEGAL CONSIDERATION IN  

OBTAINING GANG RECORDS  

Good records detailing how gang information was obtained are important.  The

usefulness of gang records depends on the constitutionally permissible procurement of

the information in the records.  Information from suspected gang members or pictures

taken of them in the field or at the police station may be obtained by consent or may be

derived from another legally permissible avenue, such as a probation search, a lawful

arrest, or a lawful investigatory detention.   It is important to thoroughly document a

gang member’s consent in cases of consensual encounters.    The documentation of

consent is useful to survive a future challenge of lack of consent when the records are

used in court.  Absent consent, there must be a lawful justification for detaining a gang

member to obtain gang‐related information from the individual.   

It is not against the law to be a gang member, nor can a law outlawing gang

membership (by itself) withstand a constitutional challenge.    Laws outlawing certain

gang behavior usually focus on the active participation of an individual in the criminal

objectives of a criminal street gang.   Police may not stop gang members against their
Gang Prosecution Manual 

8 Section 1.  Investigating the Gang Case

will to interrogate and/or photograph them merely for belonging to a gang.    The  

United States Supreme Court has stated that the guarantees of the Fourth Amendment

do not allow stopping and demanding identification or information, or taking

photographs from individuals without any specific basis for believing they are involved

in criminal activity, Terry v. Ohio, 392 U.S. 1 (1968) and Brown v. Texas, 443 U.S. 47

(1979).     

To justify an investigative stop or detention, the circumstances known or

apparent to the officer must include specific and articulable facts causing the officer to

suspect that (1) some activity relating to a crime has taken place or is occurring or about

to occur and (2) the person the officer intends to stop or detain is involved in that

activity, Terry v. Ohio, 392 U.S. 1, 21, supra.  Further, evidence obtained during an illegal

detention or arrest and evidence that is derived from initially illegally obtained

evidence may be suppressed, Wong Sun v. United States, 371 U.S. 471 (1963).  Derivative

evidence, such as a photo identification of a suspect obtained from the use of evidence

that was illegally obtained by the police explicitly for use in further criminal

investigations (e.g., photos for gang books or field interview cards for gang databases),

may be suppressed in court.   

A Gathering of White-Supremacist Skinhead Gang Members 
Gang Prosecution Manual 

9 Section I. Investigating the Gang Case 

GANG BOOKS, SCHOOL YEARBOOKS,  

AND OTHER RESOURCES

Gang files or books should be gang‐specific and include evidence showing the

existence, territory, and dynamics of the gangs in the jurisdiction.    They should,

therefore, include photos of gang graffiti and its location; examples of various names

and symbols used to identify the gang; photos of various tattoos worn by individual

members affiliated with the gang; and group photos and/or photos of gang members

throwing hand signs, holding firearms or other weapons, or dressed in obvious gang

attire or having other indications of gang affiliation, including specific styles and colors

of clothes and numbered or lettered jerseys associated with a particular gang (e.g., “AB”

or “12” for Asian Boyz or “22” [22nd letter of the alphabet] for V‐Boys—both Asian

street gangs in Orange County, California).   

This documentation should also include examples of personal items, such as

letters to and from various members in correctional facilities; other letters with gang

reference; schoolwork; and phone books with reference to individual members’ names,

monikers, and phone numbers.  It is also important to document and catalog any and

all examples of disrespect to rival gangs, newspaper articles of gang homicides or other

felonious assaults, photos of crossed‐out graffiti in public places, and personal items

with negative references to rivals with names crossed out.  All of these aforementioned

items should be properly cataloged by gang name, with the date and time they were

discovered, the locations where collected, and the names of the individuals, officers,

deputies, or agents who collected the cataloged items.   

Asian Boyz (Asian Gang) Hand Sign The V-Boys (Asian Gang) Tattoo 
Gang Prosecution Manual 

10 Section 1.  Investigating the Gang Case

Gang books serve as a way to collect and maintain gang records and/or

photographs of individual members.   They should include photographs of all known

gang members from a particular gang identified by self‐admission or through other

reliable sources.    The books are used for possible suspect identification when the

circumstances of an offense indicate it was committed by a member or members of a

particular gang.  Gang books tend to change or evolve over time as new members join

the gang, gang members are killed off by rivals, or other members leave the jurisdiction

or are sentenced to prison for long‐term commitments.  The gang books need to reflect

these changes if they are to be used effectively in identifying, apprehending, and

prosecuting gang members.    Without continual updating, gang books become less

effective for investigative, enforcement, and prosecutorial efforts.   It is also critical to

keep a record of what a gang book looked like at the time it was shown to a witness or

victim (whether there was an identification or not) for use in court.    Investigators

should photocopy any and all photos shown to witnesses or victims and include them

in the case file along with any admonitions given.   

Another method used for identification is the arrangement of gang photos (in a

gang book) in a multiple “six‐pack” organizational scheme.   If identification is made

from a six‐pack, not all photos from the gang book need to be copied and entered into

the case file, only those shown in the lineup or series of lineups.  This also protects the

integrity and confidentiality of the gang book in its entirety.   

School yearbooks from elementary schools, middle schools, and high schools in

the jurisdiction are also a great tool to utilize in the identification of gang offenders.

Given the youthful nature of most gang offenders, the yearbooks are an invaluable aid

in the identification process when the perpetrator is known to the victim or witness

from school and, particularly, if no other photos exist.    Gang investigators should,

therefore, regularly obtain up‐to‐date yearbooks to have at their disposal and should

also maintain a close working relationship with school officials or resource officers

regarding specific gang activity and/or membership on campus.   

Photos showing gang members either alone or posing with other known or

suspected gang members that are seized during the service of search warrants or

probation and parole searches or that are otherwise lawfully obtained during criminal

investigations should also be maintained and cataloged by gang and date.   
Gang Prosecution Manual 

11 Section 1.  Investigating the Gang Case

V-Boys (Asian Gang) Dressed Up for Party Flashing Hand Signs 

FIELD INTERVIEW CARDS

Gang records and/or databases should also be gang‐member‐specific.    They

should evidence an individual’s specific affiliation and allegiance to his gang.   These

records should include original field interview (FI) cards that were completed by patrol

officers, detectives, and gang investigators.   

Information from the FI cards should then be entered into a local database to

include the member’s name, physical description, address, phone numbers (home,

work, and cellular), scars, marks or tattoos, vehicles, and associate members with whom

the individual has been in contact.  Frequently, a fingerprint of a gang member is placed

on the back of an FI card to ensure that there is no question later regarding the identity

of the individual contacted.  The documentation should also include the reason for the

contact, such as reasonable suspicion, probable cause, or consensual encounter.  A brief

recitation of the facts surrounding the contact can be used later to refresh officer

recollections and for suppression motions and impeaching inconsistent defendant

testimony.    Also included on the FI card should be the gang member’s status in the
Gang Prosecution Manual 

12 Section 1.  Investigating the Gang Case

gang and how it is known—not just that the member belongs to a gang but how that

fact was established (self‐admission, tattoos, clothing, or involvement with other self‐

admitted members in gang‐related activity).    Whatever the basis, it needs to be

documented.  Any self‐admission should be in quotes: “I claim West Trece,” or “I was

jumped into the Orphans,” or “I kick it with Asian Boyz.”   

Female Racist Skinheads 

All gang‐related FI cards should be sent to the gang unit or other unit

responsible for keeping records on gang members or gang crime.   Some departments

send all FI cards to the records bureau and may eventually forward them to the gang

unit.    To be most effective, FI cards need to be promptly sent to the gang unit

investigators.    Therefore, an NCR (ticket format) FI card is an effective method of

disseminating the FI cards in a timely manner.    A three‐part form can be utilized,

wherein one copy is disseminated to and maintained by the gang unit, one copy is

given to the records bureau for departmentwide recordkeeping, and the last copy is
Gang Prosecution Manual 

13 Section 1.  Investigating the Gang Case

provided to the regular detective bureau and reviewed by all members of the division.  

All members of the department (patrol, detectives, gang unit, etc.) should be involved

in the process of completing FI cards and ensuring that they are disseminated

accordingly to ensure effective law enforcement and investigative efforts.   

There should also be a policy or procedure in place that outlines the

circumstances in which FI cards may or should be completed.    Law enforcement‐

generated gang member photographs frequently accompany FI cards or other official

documents of the police department (gang notifications—California STEP Act notices

explained below).   Information on the back of an FI card or other document should,

therefore, include a photo consent signature line.   The photo should also include the

date and time it was taken and under what circumstances (e.g., during a detention,

following an arrest, by consent).  Photos taken without legal justification are subject to

exclusion from evidence in court, and identifications from illegally obtained photos are

subject to suppression.  In court, identifications must then be proven by the prosecution

to be the independent product of the witness’s recollection and not tainted by a

suppressed photo used in the out‐of‐court identification process.   

CRIME AND INCIDENT REPORTS

Any report documenting a gang member’s criminal activity or in which he or she

is identified as the victim of a gang‐related crime should be maintained and cataloged

by individual member, gang, and date.   

In addition to police and incident reports, police and probation and parole

officers serve notices on gang members of the penalties for active participation in a

criminal street gang under the California Street Terrorism Enforcement and Prevention

(STEP) Act.    The notice informs a gang member that the police, probation or parole

officers, or the courts have determined that the recipient is an active participant in the

street gang and that continued participation may result in criminal prosecution,

including enhanced penalties (sentences) for gang‐related criminal violations.  A copy

of this notice, or “proof of service,” is kept as proof that the gang member received the

notice.  A juvenile offender’s parents are also given a copy of the form and are notified

of their child’s gang membership or participation.  The proof of service usually includes

the same information as the FI card, with an emphasis on gang activity, and is often

accompanied by a photo of the gang member who was served with the notice.  The FI

card can include the STEP information on the reverse side.  The STEP notice includes
Gang Prosecution Manual 

14 Section 1.  Investigating the Gang Case

the gang member’s name, the name of his gang, and the fact that his gang is a criminal

street gang pursuant to Section 186.22 et al. of the California Penal Code.  This notice

also outlines the related 33 criminal offenses that define criminal gang activity.  There is

a signature line for the gang member to sign and date indicating that he/she has read

and understands the nature of the information in the act.  These documents should be

maintained and cataloged in the same manner as the other gang records previously

mentioned.   

“White Power” Tattoos 

GANG DATABASES:  STORING AND  

RETRIEVING GANG RECORDS

The backbone of any successful gang unit is the strength of its intelligence files or

gang records.    Gang unit investigators should not only contribute their gang

intelligence information to regional gang databases, to be shared with other law

enforcement agencies, but should also develop and maintain their own in‐house

records, in case regional databases “crash” or are otherwise unavailable because of

updates or repair.  Regional databases typically offer thousands of records of gangs and

gang members from many jurisdictional areas where authorized users can read and

update files, download and retrieve photos, and utilize the system to further their

investigations.    Many of these databases contain gang members’ names, addresses,

vehicles, and probation and parole status and have a wide range of search capabilities.    
Gang Prosecution Manual 

15 Section 1.  Investigating the Gang Case

An in‐house database should be designed as a system for collecting, analyzing,

and storing information that qualifies as criminal intelligence and should allow only

limited dissemination and use of the intelligence to enhance public safety.  Gang unit

investigators need to preserve the integrity of the system by keeping it secure from

others who have not been authorized or lack responsibility for maintenance of such

files.    The constitutional protection of privacy of individuals (whose information is

listed in the system) must be followed and a purging system must be adhered to for the

credibility and integrity of the files.    There should also be a policy and procedure

governing access to the system and for determining what information may be entered

and maintained.  This procedure must follow applicable federal and state laws.   

The in‐house database should allow the authorized user to enter and retrieve

information on the gang’s history, individual members, monikers, addresses, phone

numbers, vehicle information, tattoos, marks or scars, and specific incident or crime

reports.  The in‐house database is an invaluable tool that can provide instant access to

up‐to‐date information on gang membership, expedite the investigation process, and

lead to successful prosecution of gang cases.   

White-Supremacist Tattoos 
Gang Prosecution Manual 

16 Section 1.  Investigating the Gang Case

GANG DATABASE LEGAL CONSIDERATIONS

As noted above, the United States Constitution prohibits criminalizing mere

membership in an organization (even ones with an apparent criminal nature), Scales v.

United States, 367 U.S. 203, 223 (1961).    However, associating with members of an

organization and performing acts that carry out criminal objects of the organization

may be criminalized.  Most state constitutions have similar associational protections.  It

is important to note that while states may not allow for less constitutional protection

than is guaranteed by the federal constitution, the states may afford individuals more

protection.    The usual attack on intelligence files is that the databases are targeting

groups not engaged in criminal behavior or associating an individual with a group

whose members engage in criminal acts.  

Citizens have a right to be free from governmental intrusion, Griswold v.

Connecticut, 381 U.S. 479 (1965); Berger v. New York, 388 U.S. 41 (1967); and Katz v. United

States, 389 U.S. 347 (1967).  On the other hand, law enforcement has a legitimate interest

in monitoring individuals and groups that engage in criminal group behavior.    The

process of collecting evidence on these individuals and groups, however, creates a

tension between the need of society to be protected by law enforcement and the privacy

expectations of individuals.  

As a result of these competing interests, in 1968, the United States Congress

passed the Omnibus Crime Control and Safe Streets Act, which attempted to recognize

the need for intelligence databases and the right to privacy.    The act resulted in the

passage of the Code of Federal Regulations, Title 28, Part 23 (28 CFR Part 23), which

outlines the requirements for entering information about an individual or a group into

an intelligence system and purging the data from such a system.  While the regulation

was designed for multiple jurisdictional intelligence databases, it is an excellent guide

for individual police departments as well because the regulation balances law

enforcement’s intelligence needs and individual privacy requirements.

Criminal intelligence information is defined in 28 CFR Part 23, Section 23.3(b)(3),

as data which has been evaluated to determine that it:

(i) Is relevant to the identification of and the criminal activity engaged

in by an individual who or an organization which is reasonably

suspected of involvement in criminal activity.

(ii) Meets criminal intelligence system submission criteria.
Gang Prosecution Manual 

17 Section 1.  Investigating the Gang Case

The submission criteria (the basis for entry into an intelligence database) are

delineated in 28 CFR Part 23, Section 23.20(a), (b), (c), and (d), and include the following:

(1) A reasonable suspicion (an abstract term that depends on the facts of

particular situations) that an individual or organization is involved

in criminal activity.

(2) Prospective information to be entered is relevant to the criminal

activity.

(3) Information does not include information about political, religious,

or social views, associations, or activities except where such

information relates directly to the criminal activity that is the basis

for focusing on the individual or group.

(4) Information was not obtained in violation of any federal, state, or

local law or ordinance.

(5) Information establishes sufficient facts to give a trained law

enforcement or criminal investigative agency officer, investigator, or

employee a basis to believe that an individual or organization is

involved in a definable criminal activity or enterprise.

Under the guidelines in 28 CFR Part 23, Section (b)(6), information in an

intelligence database must be evaluated for its relevance and importance at least every

five years.  Information not in compliance with the submission requirements should be

purged, even if it is discovered to be noncompliant before five years.  No information

from the database should be disseminated without a legitimate law enforcement reason,

such as a criminal case being filed against a suspect with information in the database.  

Juvenile Hispanic Gang Members 
Gang Prosecution Manual 

18 Section 1.  Investigating the Gang Case

GANG SEARCH WARRANTS

Investigations in serious gang offenses frequently include obtaining a search

warrant seeking, among other things, evidence of the suspect’s gang membership.  

Gang evidence is invaluable in helping to explain the motivation for the commission of

some gang crimes and is helpful in identifying the suspects by establishing, for

example, membership in a gang rival to the victim’s gang.  There is no such thing as too

much gang evidence, even in cases of clearly gang‐motivated crime.   

Gang dynamics frequently allow for search warrants permitting the searching of

multiple locations.  The most basic element of a gang is that it is a group that perceives

itself as a group and acts as a group during the perpetration of delinquent or criminal

offenses, hiding the instrumentalities or fruits of such offenses.    Given the group

dynamics and group criminal liability involved in many gang‐related offenses, criminal

investigations focus on many suspects in gang cases.   The mere existence of multiple

suspects normally allows for a search warrant for multiple locations.  Gang practices of

hiding evidence or instrumentalities of crimes for fellow gang members also afford

more possible locations to be searched in gang cases.

An affidavit in a gang search warrant requires all of the care and content of a

non‐gang search warrant and much more.    The affidavit in a gang search warrant

includes the following necessary components:

(1) The affiant’s identity and training, education, experience, and

expertise relating to the existence and activities of street gangs.

(2) The affiant’s personal observations and information from other

persons and sources relevant to establishing probable cause.

(3) A statement of the facts justifying the affiant’s belief that the

information included in the affidavit from other sources is accurate

and reliable.

(4) A conclusion with the opinion that based on the affiant’s training and

experience and the facts in the affidavit, the items sought will be

found at the requested locations to be searched.    
Gang Prosecution Manual 

19 Section 1.  Investigating the Gang Case

(5) Specific opinions to establish that:

(a) The warrant affidavit’s probable cause to believe the

suspect gang exists,  

(b) The suspects are members of that gang, and  

(c) The crime was done for a gang‐related purpose.

(6) Facts regarding the suspect’s membership in the gang as

documented in FI cards, police reports, or any other documents or

photographs need to be spelled out in detail in the affidavit.  

(7) An expert opinion explaining gang dynamics—such as passing

evidence, instrumentalities, or fruits of a crime among fellow gang

members—that allows for the search of multiple locations or is useful

in overcoming staleness, if much time has passed since the

commission of the crime.

In a typical gang‐related search warrant, a gang investigator should seek items of

evidence to prove that the underlying crime occurred, as well as instrumentalities or

fruits of the committed crime.  Additional items would include evidence of street gang

membership, such as documents, photos, drawings, writings, objects, graffiti depicting

the named suspects in the case or gang or gang member names, initials, logos,

monikers, or any newspaper clippings referencing the crime under investigation.  

(Examples of language for the affidavit in a gang search warrant and the language for

the warrant itself are found in the “Gang Search Warrant and Affidavit Language”

section of this document.)  Of course, the investigator also must request permission to

search for any articles of personal property tending to establish dominion and control

over the premises and/or automobile(s) to be searched.
Gang Prosecution Manual 

20 Section 1.  Investigating the Gang Case

Hispanic Gang Tattoos 

For a number of reasons, it is important to analyze and catalog the items seized

in a “gang warrant” following the service of the warrant.  First, it allows the magistrate

who approved the warrant to determine that only items authorized in the warrant were

seized.  Second, although it is a tedious task, all of the seized letters need to be read,

seized film developed, and seized tapes listened to, because their value depends on

their content.  Finally, a detailed inventory itemizing the evidence should be prepared

for use in the instant case and for future use.    Such an inventory allows for easy

retrieval and should also be included in the gang intelligence files.

USE OF INFORMANTS AND THE NEED  

FOR AN INFORMANT POLICY

“It takes one to know one” is the age‐old premise of using CIs (cooperating

individuals or confidential informants) in criminal investigations.    Cooperating

individuals is the preferred reference to individuals who cooperate with the police,

because the definition is more expansive and recognizes that great care must be taken

when one is using the information from a cooperating individual.    A cooperating

individual is any person who knowingly provides information to law enforcement

related to another’s criminal activity, whose motivation for doing so is other than that of

an uninvolved witness who is a victim or private citizen primarily acting through a

sense of civic responsibility, and who, as a general rule but not necessarily, expects

some sort of personal benefit or advantage or the same for another individual.    A
Gang Prosecution Manual 

21 Section 1.  Investigating the Gang Case

benefit is usually financial or reduced punishment or some other favorable treatment

given in exchange for the information.   

Typical CIs in gang cases include mercenaries (paid informants), gang members

cooperating to obtain leniency in another case, codefendants, or friends not involved in

the present crime.  Cooperation covers a range of possibilities, including (among other

things) making tape‐recorded telephone calls, supplying information regarding the

suspects of a crime or their present whereabouts, wearing a recording device while

attending a meeting of gang members, recapturing stolen property for the police,

and/or testifying.   

While the benefits of CI‐supplied information can be enormous, CIs should be

used with great caution.  Juries do not like “snitches.”  Police and prosecutors should

carefully log all benefits conferred on a CI during an investigation and disclose the

benefits before trial to the defense.  Such benefits are viewed legally as motivation for a

CI to favor law enforcement while testifying.    Great care must also be given to

disclosing to the defense any exculpatory Brady material that might be discovered as a

result of the CI’s cooperation, Brady v. Maryland, 373 U.S. 83 (1963).   

CIs should only be used after a written agreement is signed that fully discloses

the agreement between the CI and the police (in conjunction with the prosecution).  

Police should also maintain a log of all supervision of and direction given to a CI and

document the performance of the CI, both good and bad.  It is critical to present the CI

in the most accurate light possible to avoid the appearance that the police and

prosecution are hiding things.   

Juveniles should not be used as CIs absent extraordinary (usually life‐or‐death)

circumstances.  Use of juveniles is normally highly restricted by law.  In California, for

example, no juvenile can be used as a CI without authorization from the juvenile court

following a hearing on the matter.    As a practical matter, juveniles are never used

because of the showing necessary for the juvenile court’s authorization.   Restrictions

also frequently exist regarding the use of probationers and parolees.  Acting as a CI and

being around criminal behavior and characters are viewed as inconsistent with the

reformative nature of probation or parole.    
Gang Prosecution Manual 

22 Section 1.  Investigating the Gang Case

CONFIDENTIALITY ISSUES  

Juvenile Court Records

It is becoming increasingly easier to obtain juvenile court records.  Throughout

the 1990s, efforts were made to distinguish less serious juvenile offenders from serious

and violent recidivist juvenile offenders.   More juveniles are now remanded to adult

court for trial, which means the court proceedings and records are open to the public.  

In addition, many states now allow for open juvenile hearings on alleged offenders who

are over a certain age or are accused of committing a serious or violent felony offense.  

Since 2000 in California, juvenile records evidencing adjudication for a serious or

violent felony offense may never be sealed and are open to public inspection.   

Typically, juvenile records are available to the prosecution in new cases against a

specific juvenile offender.   Juvenile records, however, are also useful in cases besides

the specific offender’s case in jurisdictions that require the prosecution to establish that

a gang has committed a certain number of predicate offenses.  Given the young age of

many gang member offenders, juvenile records are frequently helpful in showing the

required predicate offenses committed by juvenile members of the gang.    At times,

there are no adult convictions available, necessitating the use of juvenile adjudication

records.  Occasionally, a court order is necessary to inspect or copy records of a juvenile

gang member for a case other than his own.   

GANG SEARCH WARRANT AND  

AFFIDAVIT LANGUAGE

Gang Paraphernalia Language

Search Warrant Description

Any evidence of street gang membership or affiliation with any street gang, said

paraphernalia to include, but not limited to, any reference to XXXXX; said items

to include any (color used by specific gang) bandanas, drawings or miscellaneous

writings, or objects, or graffiti depicting gang members’ names, initials, logos,

monikers, slogans, or containing mention of street gang membership affiliation,
Gang Prosecution Manual 

23 Section 1.  Investigating the Gang Case

activity, or identity; any paintings, drawings, photographs or photograph albums

depicting persons, vehicles, weapons, or locations which may appear upon

observation to be relevant on the question of gang membership or association, or

which may depict items sought and/or believed to be evidence in the case being

investigated with this warrant, or which may depict evidence of any criminal

activity; any newspaper clippings tending to relate details or reference to any

crime or crimes of violence; and any address books, lists of, or single references to,

addresses or telephone numbers of persons who may later be determined to belong

to or be affiliated with any street gangs.

Affidavit Language to Justify Seizure of Gang Paraphernalia

I request permission to seize any evidence of street gang membership or affiliation

with any street gang, said paraphernalia to include, but not limited to, any

reference to XXXXX; said items to include any drawings or miscellaneous

writings, or objects, or graffiti depicting gang members’ names, initials, logos,

monikers, slogans, or containing mention of street gang membership affiliation,

activity, or identity, as it is my experience that most street gang members are

known by street names or monikers to their fellow gang members, and that they

frequently write their names or monikers of their associates on walls, furniture,

miscellaneous items, or papers, both within and on their residences, and within

and on their vehicles; any paintings, drawings, photographs or photograph

albums depicting persons, vehicles, weapons, or locations which may appear upon

observation to be relevant on the question of gang membership or association, or

which may depict items sought and/or believed to be evidence in the case being

investigated with this warrant, or which may depict evidence of any criminal

activity, as it is my experience that most gang members keep photographs and

photograph albums, in which are depicted (1) fellow gang members who are

posing and giving hand gang signs that indicate gang identity or affiliation, (2)

gang members or associates posing with weapons, particularly firearms that are

often used for criminal activities, (3) gang members or associates posing beside

vehicles that are occasionally used during the commission of crimes, and (4) gang

members or associates posing at locations that are known to be specific gang

hangouts; any newspaper clippings tending to relate details or reference to any

crime or crimes of violence, as it is my experience that gang members occasionally

maintain scrapbooks or newspaper articles that describe crimes committed by or

against their gang; and any address books, lists of, or single reference to, address

or telephone numbers of persons who may later be determined to belong to or be

affiliated with any street gangs, since it is my experience that gang members
Gang Prosecution Manual 

24 Section 1.  Investigating the Gang Case

frequently maintain the current phone numbers or addresses of fellow gang

members whom they associate with.

It is my opinion that evidence of gang membership or affiliation with any street

gang is important, as it may suggest motive for the commission of the crimes, in

the instant case, and it may provide evidence which tends to identify other

persons who may have knowledge of or be involved in the commission of the

crimes in the instant case, or it may tend to corroborate information given by

other witnesses.

I believe that these are not the types of items normally disposed of after the

commission of a crime and that they will, therefore, likely still be found in the

locations or on the persons to be searched.   

Dominion and Control Language

Search Warrant Description

Any articles or personal property tending to establish the identity of persons who

have dominion and control over the premises, automobiles, or items to be seized,

consisting of rent receipts, utility company receipts, miscellaneous addressed

mail, personal letters, personal identification, keys, photographs, vehicle titles,

and vehicle registration slips.

Affidavit Language to Justify  

Seizure of Dominion and Control Evidence

I request permission to seize any articles of personal property tending to establish

the identity of persons who have dominion and control over the premises,

automobiles, or items to be seized, consisting of rent receipts, utility company

receipts, miscellaneous addressed mail, personal letters, personal identification,

keys, photographs, vehicle titles, and vehicle registration slips.

I believe that all of these items will tend to connect the premises, persons,

locations, and vehicles to be searched with the items to be seized and the case

being investigated.    It is my experience that these types of items are usually

present at the types of locations sought to be searched in this warrant, and I
Gang Prosecution Manual 

25 Section 1.  Investigating the Gang Case

believe that these items are not the type normally disposed of and can, therefore, be

found at the locations to be searched.

Affidavit Language to Establish Relevance of Gang Evidence  

(overcoming staleness with the dynamic of guns and evidence being passed among

fellow gang members)

Based upon all of the above, the attached exhibits, and my expertise on gangs, I

have the following opinions regarding this case:

(1) That there is a longstanding and ongoing war between

members of the XXXXX and the XXXXX and that this war

has involved many acts of violence on both sides.

(2) That I personally know that the XXXXX are a close‐knit group

and that it is not uncommon for many of the members to be

involved in related acts of violence.

(3) That when an ongoing war situation involving many separate

members of the same gang exists, it is not uncommon for the

violent members at the central core of the gang to associate

with each other, and to plan together aggressive acts and/or

acts of violent retaliation to be perpetrated by a few members of

this violent central cadre.

(4) That the pattern of violent acts between the XXXXX and the

XXXXX and the large number of separate people involved in

these acts makes it more likely than not that there is a general

common plan existing among the XXXXX to commit acts of

violence with the XXXXX.

(5) That in a longstanding, gang‐shooting war, members of the

victim gang in one shooting frequently know or suspect that

they know who the perpetrators are because of the “word on the

street,” which is information passed from person to person,

often based on sources within the perpetrators’ gang, on

eyewitnesses reluctant to cooperate with the police, or on gang

graffiti that is composed of writings on buildings or walls and
Gang Prosecution Manual 

26 Section 1.  Investigating the Gang Case

is a means used by some gang members to take credit for a

violent incident.

(6) That because of the above, a person involved as a shooter in a

gang‐related war incident will generally assume his identity is

known on the streets and that, while he must temporarily

dispose of the weapon used in the underlying offense, he must

at the same time have accessible to himself a weapon which can

be used for self‐defense upon short notice.

(7) That gang members who are involved in an ongoing war of

shooting incidents frequently do not permanently dispose of

their weapons, preferring to retain access to them for protection

from retaliation or for further use in acts of aggression while

the war is continuing.

(8) That gang members who use a firearm in gang war situations

frequently borrow the weapon used from a fellow gang

member, and after the commission of a violent act with the

weapon, they return it to the gang member they borrowed it

from, to prevent it from being seized by law enforcement

officers pursuant to a search conducted shortly after the

commission of the crime.

(9) That gang members who do use their own firearms in gang war

situations frequently pass the weapons used to fellow gang

members for safe keeping, in order to prevent the weapons from

being seized by law enforcement officers pursuant to a search of

their residences, vehicles, or persons.

(10) That when a gang member in the above situation believes that

he is no longer liable to be searched as a suspect in the shooting

incident, he will frequently retrieve the weapon used and store

it where it would be readily accessible for defense or offense,

such as in his residence, on his person, or in a vehicle to which

he has access.
Gang Prosecution Manual 

27 Section 2.  Gang Group Crime Theories of Liability

and Investigation Considerations

Section 2.

Gang Group Crime Theories of Liability  

and Investigation Considerations:

Why the Liability Net Gets Thrown  

Over So Many

By 

John Anderson, Assistant District Attorney 

Orange County District Attorney’s Office 

Supervisor of the TARGET Gang Unit 

Santa Ana, California 

INTRODUCTION

Gangs represent perhaps the greatest violent crime threat facing society.  

Successful gang crime investigations and prosecutions usually require an intimate

familiarity with typical gang dynamics and the legal theories associated with group

criminal behavior.    Before a gang can be anything else, it must first be a group and

almost always a group that involves itself, as a group, in serious and violent criminal

conduct.   

Unfortunately, one of the few consistent findings in gang research is that gang

members commit a disproportionately high number of delinquent and criminal acts

compared with other non‐gang‐involved youth.    Frequently, gang members commit

crime as a group, and such group criminal behavior poses unique dangers to society far

more serious than the risk typically related to individual criminal behavior.  

Understanding the legal theories of group criminal liability assists in the investigation

of most gang‐related crimes—especially in crime scene considerations, victim and

witness interviews, and the interrogation of suspects.   
Gang Prosecution Manual 

28 Section 2.  Gang Group Crime Theories of Liability

and Investigation Considerations

Consider the following hypothetical yet typical gang activity scenario:   

Three documented members of the Crazy Punkz (CP) street gang notice that

someone from the Not So Smart Boyz (NSSB) has come into CP territory and “plaqued

up” (spray‐painted) a wall in the CP territory with NSSB graffiti.  The plaqued‐up wall

is the main wall used by CP to spray‐paint CP graffiti and is in the heart of CP territory.  

The NSSB culprit also crossed out the CP graffiti.  Naturally, the three CP members feel

disrespected and agree to collectively retaliate against NSSB by likewise spray‐painting

walls in the NSSB turf.   

The CP members decide that because they are going into NSSB territory, they

should bring along a firearm in case they are confronted while spray‐painting and that

two of the three will paint while the third watches for rivals and the police.  The three

agree that the gun will ONLY be used, if at all, to scare a rival, assuming the group is

confronted while in NSSB territory.

The three enter the NSSB neighborhood and leave their CP graffiti everywhere

they can.  Sure enough, several NSSB gangsters see the CP members and confront them.  

The CP member keeping lookout (and possessing the handgun) immediately takes out

the handgun and fires several shots at the NSSB members while screaming, “Die, you

cheese‐eating rats!”  Two NSSB gangsters are killed and two others severely wounded.

Who is liable for what crimes?  Hint:  consider group crime dynamics, conspiracy

and aiding and abetting laws, and extended or derivative liability principles.  

Sequentially, the CP members conspired to commit a misdemeanor (vandalism), which

makes the target crime a felony in many states; they jointly possessed the handgun (one

actually, the others constructively); they are each liable for the acts of vandalism (two as

direct perpetrators, the other as an aider and abettor); and the shooter CP gang member

directly perpetrated the murder of the two dead NSSB members and the attempted

murder of the other two who survived.  The remaining two CP members are also liable

for the murders and the attempted murders as the natural and probable consequences

of conspiring to vandalize the NSSB territory while possessing a firearm.    To fully

appreciate the application of these concepts, it is necessary to review group crime

dynamics, the basic principles of aiding and abetting and conspiracy laws, and

extended derivative liability.  
Gang Prosecution Manual 

29 Section 2.  Gang Group Crime Theories of Liability

and Investigation Considerations

GROUP CRIME DANGERS

The old adage “two heads are better than one” exemplifies the dynamics and

dangers associated with group participation in criminal acts.    Often, group actions

synergistically affect the outcome of an intended goal.  While group work and synergy

are normally considered positive attributes, these principles work dangerous

consequences when applied to criminal enterprises.    Criminal law has historically

responded with severe sanctions against participants in group crime.  Specialized legal

theories and crimes and criminal punishments have been developed in response to the

dangers of group criminality.  

“Unquestionably, the purpose of the law in making it an offense to [agree

to commit a crime as a group] is to reach everyone who has participated in

forming the evil plan irrespective of who or how many carry out the

design, and well may this be a protection to society, for a group of evil

minds planning and giving support to the commission of crime is more

likely to be a menace to society than where one individual alone sets out

to violate the law.”

People v. Luparello, 187 Cal. App. 3d 410, 437 (1986)

    

The above is true because group behavior in crime represents a unique danger to

society.    The potential for harm to society increases when multiple participants are

involved in the planning and execution of criminal schemes.  As one court has said,  

“The punishment of conspiracy as a felony . . . is explained on the theory

that concerted criminal activities are a much more serious danger than

individual criminal acts, and therefore justify drastic sanctions against the

criminal agreement itself.”   

Williams v. Superior Court, 30 Cal. App. 3d 8, 11 (1973)

The United States Supreme Court has stated the following concerning the

dangerous dynamics associated with group criminal behavior:

“Collective criminal agreement—partnership in crime—presents a greater

potential threat to the public than individual delicts.    Concerted action

both increases the likelihood that the criminal objective will be

successfully attained and decreases the probability that the individuals

involved will depart from their path of criminality.  Group association for

criminal purposes often, if not normally, makes possible the attainment of
Gang Prosecution Manual 

30 Section 2.  Gang Group Crime Theories of Liability

and Investigation Considerations

ends more complex than those which one criminal could accomplish.  Nor

is the danger of a [criminal] group limited to the particular end toward

which it embarked.    Combination in crime makes more likely the

commission of crimes unrelated to the original purpose for which the

group was formed.  In sum, the danger which [group criminal behavior]

generates is not confined to the substantive offense that is the immediate

aim of the enterprise.”

Callanan v. United States, 364 U.S. 587, 595 (1961)

Group crime represents not only the danger of a crime being committed but also

a uniquely elevated danger potential.  As stated by the California Court of Appeal:

“The basic [group crime prohibition] principle has some place in modern

law, because to unite, back of a criminal purpose, the strength,

opportunities and resources of many is obviously more dangerous and

more difficult to police than the efforts of a lone wrongdoer.  

Collaboration magnifies the risk to society both by increasing the

likelihood that a given quantum of harm will be successfully produced

and by increasing the amount of harm that can be inflicted.”   

People v. Williams, 101 Cal. App. 3d 711, 721 (1980)

The specific dangers of group crime include an increased chance of the planned

crime actually occurring, a greater possibility of criminal success, a higher risk of

violence, and an increased likelihood of escape or not being detected.  Group behavior

increases courage and lowers inhibitions among group members.      

Group criminal participation historically has received severe sanctions because

of the unique dangers associated with group criminal dynamics.  When a group is set

upon committing a crime, there are accompanying dangers.  For example, the chance of

the crime actually occurring increases because the group dynamics result in increased

courage, perceived strength from numbers, lowered inhibition among the group

members, higher degrees of negative peer influence, and a reluctance for group

participants to back out of the criminal design because the others are relying on them.

Simply stated, people do things in a group environment that they would not do alone.

Many hands make light work, and many minds can formulate better plans and more

thoroughly prepare for contingencies.    Compared with a single individual, a group

increases the chances of a crime being better planned.    Groups also possess more

physical strength (helpful in carrying away stolen property, subduing victims, passing

or concealing weapons, breaking down doors, etc.) than individuals and can expedite

the commission of an offense by dividing the tasks necessary for the completion of the
Gang Prosecution Manual 

31 Section 2.  Gang Group Crime Theories of Liability

and Investigation Considerations

crime.    Finally, the enhanced physical and mental attributes of a group criminal

enterprise better allow a group to escape following a crime.  This is accomplished by

quicker execution of the crime, given the enhanced physical and mental attributes of a

group.

TEENAGE GROUP CRIME DANGERS

The group crime dangers described above are exacerbated when the group is

composed of teenagers and young adults and even more so with gang members.  

Teenagers and young adults, on a percentage basis, are more frequently involved in

criminal acts than adults.    Youthful offenders have limited or immature levels of

judgment and social development.    Peer influence is at its highest among younger

people, and this age cohort frequently involves itself in group activities (criminal and

noncriminal).    A startling reality is that more than 90 percent of delinquent acts are

committed in groups of two or more (Bursik, 1993, p. 142).   

GANG GROUP CRIME DANGERS

Gang group criminal involvement represents the zenith of group crime dangers.  

While there is no universal definition of a gang, every available definition recognizes a

gang as a group (Klein, 1995, p. 94).   In fact, a gang draws its identity, strength, and

reputation from its strength as a group and the crimes it commits, usually as a group.  

Research has consistently shown that gang members have extraordinarily high levels of

delinquency and criminal involvement (Esbensen, 1993, p. 110).  Gangs not only commit

crime as a group but also do so more frequently than other youthful offenders who, in

turn, commit a greater percentage of crime than older‐age cohorts.  Compounding the

problem is that gang members possess an antisocial, oppositional mind‐set; reject

middle‐class values; more frequently drop out of school (which increases free time,

leading to more criminal opportunity); have high levels of substance abuse; and identify

more closely with negative peers.    The bottom line is that gangs represent one of

society’s greatest group criminal threats.
Gang Prosecution Manual 

32 Section 2.  Gang Group Crime Theories of Liability

and Investigation Considerations

BASIC CONCEPTS OF GROUP CRIMINAL LIABILITY

Direct Criminal Liability

Most states consider persons who directly and actively commit or attempt to

commit acts constituting a crime as principals in the commission or attempted

commission of the crime.    All such perpetrators are equally guilty of the crime, no

matter if the involvement of all is not equal.    So long as each is a perpetrator of the

offense, each is legally culpable and, therefore, legally blameworthy.   

Aiding and Abetting  

Principals in a crime also include those who aid and abet the commission of the

offense.  Aiders and abettors are liable for the same crime as the direct perpetrator(s)

and are punished the same.  A person aids and abets the commission of a crime when

he or she (1) aids, promotes, encourages, or instigates another person or persons in the

commission of a crime; (2) has knowledge of the unlawful purpose of the perpetrator(s);

and (3) has the specific intent or purpose of committing or encouraging or facilitating

the commission of the crime.*  

(*Many states require only willful assistance of another in the commission of a

crime with knowledge of the perpetrator’s intent.  There is no requirement of intent in

the mind of the aider and abettor for the crime to actually occur.)

Simply stated, an aider and abettor is a person who helps someone in the

commission of a crime while having at least knowledge of the direct perpetrator’s

criminal or unlawful purpose.  The aider and abettor either has to act knowing that the

act will help facilitate a crime or, in a minority of the states, must share with the direct

perpetrator the specific intent for the crime to actually occur.  The aider and abettor by

act or advice (words) aids, promotes, encourages, facilitates, or instigates the

commission of the direct perpetrator’s crime.   

There is no requirement that an aider and abettor be present at the scene of a

crime, merely that he or she knowingly helped the perpetrator commit the offense.  

Drawing a diagram of the interior of a robbery location, giving the alarm codes, or

loaning the instrumentalities of a crime (getaway car, guns, rope, or duct tape) are good

examples of assisting the commission of a crime while not being present for its

execution.    On the other hand, merely being present during the commission of an
Gang Prosecution Manual 

33 Section 2.  Gang Group Crime Theories of Liability

and Investigation Considerations

offense is not a crime.  Likewise, knowing that a crime is about to occur and failing to

report or prevent it is not a crime.

Conspiracy Liability

Collective gang criminal action frequently also constitutes a conspiracy.    A

conspiracy is two or more persons agreeing to commit a crime.  Many states also require

that one of the conspiring parties commit some act, known as an overt act, toward the

completion of the agreed‐upon crime before criminal liability attaches against all of the

conspirators.  There is no requirement that the overt act be a crime, just that it be done

to further the criminal goal of the conspiracy.   

Regarding the required mind‐set of the conspirators, each must have the specific

intent to agree and to commit a crime.  There is no requirement that the planned offense

actually occur or that all of the conspirators be present if the crime is attempted or

completed.    Because of the recognized dangers of group criminal activity, the law

usually punishes a conspiracy the same as if the target crime actually occurred.  Finally,

if the target crime is attempted or actually occurs, there is separate criminal liability for

attempted or completed crime.

INVESTIGATION CONSIDERATIONS

Frequently, in a gang context, a group rather than an individual commits crime.  

Anytime multiple participants commit a crime, it is important to investigate the crime

with group criminal liability concepts in mind.    When there are multiple possible

criminal perpetrators, it is important to focus on the actions of each suspect, not just the

obvious ones.    

Crime Scene

Evidence found at a crime scene may indicate the involvement of multiple

suspects.    Physical evidence is powerful corroboration of victim, witness, and/or

suspect statements.  Every reasonable effort should be made to collect and analyze all

available crime scene evidence.  Issues to consider include:
Gang Prosecution Manual 

34 Section 2.  Gang Group Crime Theories of Liability

and Investigation Considerations

(1) Were multiple weapons used?

— Were different caliber expended bullet casings or

projectiles found at a shooting?

— Were different types of weapons left at the crime scene?

— Do the victim’s wounds indicate more than one weapon

was used?

(2) Is the available fingerprint, blood, or DNA evidence indicative of

several perpetrators?

(3) Were any other instrumentalities of the crime left behind

demonstrating group criminal behavior?

— Items of clothing, notes, multiple vehicles, etc.  

(4) Is there any security video available from the scene or nearby

locations where the suspects may have been just before or after the

crime?

(5) Is there any other physical evidence that has a tendency to show

there was a group of perpetrators involved in the crime who were

assisting each other in the commission of the offense or facilitating or

encouraging the commission of the offense?

(6) Was there any fresh graffiti sprayed in the area immediately before

or after the crime that could be a gang’s claim of responsibility for

the crime?

(7) Were the victims or intended victims documented gang members

based on police records?

Witness Statements

Obviously, witnesses are a valuable source of information in multiple‐

perpetrator crimes.  Sometimes, however, witnesses are allowed to give conclusionary

statements (e.g., “They all attacked the victim!” or “The skinny guy was acting as a

lookout.”) instead of detailed accounts of each suspect’s involvement.  It is important

for witnesses to fully describe the actions of each perpetrator, whenever possible.  

Witnesses should also be separated from each other as soon as possible and interviewed

individually.  Finally, whenever possible, witnesses should be tape‐recorded to ensure
Gang Prosecution Manual 

35 Section 2.  Gang Group Crime Theories of Liability

and Investigation Considerations

that the witnesses’ stories are unquestionably memorialized should the witnesses

become uncooperative during court testimony.

Witnesses to a crime can provide important information in the following areas:

(1) Number of suspects.

(2) Specific actions of each suspect.

(3) Whether the suspects arrived and/or left together.

(4) How the suspects talked and interacted with each other.  (Did they

speak to one another as if they were associated, and were they

directing each other during the commission of the crime?)

(5) Were there multiple direct perpetrators of the crime (e.g., shooters,

stabbers, spray‐painters, or beer grabbers in a beer run)?

(6) Were the suspects dressed similarly or in the same color of clothes?

(7) Was a gang name announced or were hand signs used before,

during, or immediately after the commission of the crime?   

(8) Were the suspects known to the victim(s) and witness(es) and known

as gang members?

(9) Was someone acting as a lookout (have the witness be specific in

describing the suspect’s actions) or as a distraction while others were

stealing property or running out of the convenience store with

alcohol or other stolen property?

(10) Any other suspect actions that indicate prior planning and

agreement.

It is important to remember that a conspiracy is a completed crime either at the

time of the agreement to commit a crime or, in those states requiring it, at the time of an

overt act by one of the conspirators in furtherance of the agreement to commit a crime.  

There may be no traditional crime scene with a conspiracy because the would‐be

perpetrators did not complete the agreed‐upon crime before something caused the

cessation of the movement toward the crime’s completion.  Likewise, in an aiding‐and‐
Gang Prosecution Manual 

36 Section 2.  Gang Group Crime Theories of Liability

and Investigation Considerations

abetting situation, if the crime is attempted but not completed, then the direct

perpetrators and the aiders and abettors are still liable for the attempt.

Consider the following scenario to demonstrate when criminal liability attaches

despite the perpetrator(s) not completing the intended crime.   

While driving in a car, a group of four gang members are stopped by a patrol

officer for a routine vehicle code violation.  The car turns out to be stolen.  A search of

the car reveals four ski masks, two handguns, a roll of duct tape, a stun gun, and a map

to the home of a jewelry merchant, who is neither related to any of the gang members

nor knows any of them.  To the experienced gang investigator or prosecutor, these facts

are powerful evidence of a conspiracy to commit a residential robbery.

Gang Expert Testimony

A gang expert’s testimony is critical in gang aiding‐and‐abetting situations.   A

gang expert is someone who, through training, experience, and/or education, is

thoroughly conversant with gang dynamics.  The expert can help explain typical gang

behaviors that are pathetically predictable but beyond the common experience of most

jurors.  Following is a listing (although in no way an exhaustive list) of several common

gang dynamic concepts and gang behavior examples of aiding‐and‐abetting and/or

conspiracy situations:   

(1) Backing up.  Gang members are expected to stand by while a fellow

gang member confronts or is confronted by a rival or commits a

crime in case the fellow gang member needs help.  The fellow gang

members are not merely present but rather standing ready and

willing to step in with assistance should the fellow perpetrating gang

member need help.  The gang members backing up the perpetrating

gang member lend confidence to the perpetrator(s) and help

encourage the commission of the offense.

(2) Driving the car.    The driver in a number of crimes is a necessary

facilitator in the commission of the offenses.  Drive‐by shootings and

commercial robberies are good examples of crimes frequently

involving drivers who are not the direct perpetrators of the offenses.

(3) Yelling the gang name.  Fellow gang members often claim (speak or

yell) their gang’s name while one of their gang members commits a
Gang Prosecution Manual 

37 Section 2.  Gang Group Crime Theories of Liability

and Investigation Considerations

crime.  This affords notoriety to the gang for the criminal activity of a

member.   It also lends encouragement for the direct perpetrator to

complete the offense.

(4) Throwing hand signs.    Gang members enjoy their notoriety.  

Frequently, immediately preceding a crime or during the

commission of a crime, gang members who are not direct

perpetrators of the offense throw their gang hand signs as

encouragement to their fellow, direct perpetrator gang members or

as a sign to the victims of the perpetrators’ status as gang members.  

(5) Preventing others from interfering.    Gang members occasionally

prevent others from interfering in a fight between a fellow gang

member and another person or in the commission of some other sort

of crime.  This conduct promotes and assists in the completion of a

crime by ensuring unfettered access to the victim.

(6) Keeping lookout or watching for the police.    Gang members often

keep guard while fellow gang members commit criminal offenses.  

The knowledge that others are watching out for you encourages the

continued commission of a crime.   It also allows the perpetrator to

focus solely on the crime instead of looking around to see whether he

or she has been detected.  A lookout is commonly utilized in street

narcotics transactions or spray‐painting expeditions.

(7) Calling the “homies” when rivals are seen.    This behavior alerts

fellow gang members to the presence of rivals, which, in turn, allows

for assaultive conduct against the rivals.   

(8) Stealing a car (G‐ride) for some other crime—usually a drive‐by

shooting or robbery.  When a gang member knowingly steals a car

for use in some other crime, the gang member is facilitating the

commission of the other offense.    The gang member is therefore

equally liable for the commission of the crime done in the car after it

was stolen.
Gang Prosecution Manual 

38 Section 2.  Gang Group Crime Theories of Liability

and Investigation Considerations

(9) Getting or holding a weapon—the “gang gun.”    Gang experts

usually opine that when a gang member has a gun, anyone in the

gang can use the gun.  Further, following a crime, it is common for a

noninvolved gang member to hold the gun until the heat dies down.  

Either situation helps the gang obtain, use, and conceal its collective

cache of firearms.

In order for an expert to render such opinions, however, it is critical to have

plentiful evidence of a suspect’s gang affiliation.  All prior field interview cards; crime

reports; pictures; correspondence; documented admissions of gang membership to

teachers, probation or parole officers, or to jailers; interview statements; and any other

piece of gang membership evidence should be gathered for use by the expert in court.

Suspect Interview—Statements

Some of the most damaging evidence in a criminal case is admissions made by a

suspect.  In a gang crime situation, gang dynamics are important areas of inquiry for an

investigating officer during a suspect interview.  It is helpful in a group crime scenario

to keep the dynamics of group crime in mind; e.g., allegiance to the group, a sense of

invincibility while in the group, reliance of the group on those who have committed to

the planned behavior, the division of tasks possible with multiple crime partners, and

alcohol or narcotic use.

Often, gang members discuss their gang membership with the police even when

reluctant to admit participation in a crime.    Under such circumstances, valuable

information is obtainable from gang member suspects.  Interview topics should mirror

the eventual testimony of the gang expert.  It is useful to have the gang suspect lay out

the gang group dynamics that are explained above.   

Interview topics with a gang member suspect should include:

(1) Attachment to and identification with the gang.

(2) The gang being the primary focus and most important aspect of a

gang member’s life.

(3) Allegiance to the gang and to fellow gang members.
Gang Prosecution Manual 

39 Section 2.  Gang Group Crime Theories of Liability

and Investigation Considerations

(4) Putting in work for the gang when called upon and knowing when

joining a gang that someday the gang member will be expected to

commit crime on behalf of the gang.

(5) “Representing” or being “down” for the gang by never backing away

from a challenge and always backing up a fellow gang member.

(6) The code of never cooperating with the police and the importance of

never being labeled a “snitch” or a “rat.”

(7) History of the suspect’s gang, the number of members, the gang’s

territory (if territorial), and the types of crimes the gang is known for

(even if the suspect denies any involvement in those crimes).

(8) Initiation rituals of walking in, jumping in, “criming in,” or being

“sexed in.”

(9) Rivalries—especially if the crime under investigation is one of

violence against a rival of the suspect gang.

(10) Expected behavior of gang members when confronting rivals and the

territories of the rivals of the suspect’s gang.

(11) Antisocial, oppositional attitudes of gang members toward the

criminal justice system, education, employment, and legitimate

society.

(12) The role of drugs and alcohol for gang members—getting buzzed is

not passing out.    Drugs and alcohol increase courage yet do not

result in the loss of self‐control.    Gang members usually are

experienced drinkers and recreational drug users.    This line of

questioning is important and helps to offset any later claim of an

alcohol‐ or drug‐induced reduced mental capacity.  

If a gang member is willing to talk about his involvement in the crime under

investigation, discuss that last.  Get as much detail about the suspect’s involvement as

possible.   Also, have the gang member explain in detail the involvement of the other

suspects.    Frequently, gang members will acknowledge behavior they believe makes

them less culpable than the direct perpetrator(s), such as watching out for the police,

keeping others from intervening during the commission of a crime, driving the car in a
Gang Prosecution Manual 

40 Section 2.  Gang Group Crime Theories of Liability

and Investigation Considerations

drive‐by shooting, supplying the gun(s) used in an offense, or being present to back up

fellow gang members during a crime should the need arise.    Legally, the above

admissions are sufficient to establish liability as an aider and abettor, a conspirator, or

both.

EXTENDED LIABILITY FROM

GROUP CRIME PARTICIPATION

Aiders and abettors and conspirators may be liable for crimes committed or

attempted by their crime partners, other than those crimes that were aided and abetted

or the target offense of a conspiracy.    Each member of a conspiracy, for example, is

liable for each act of every other member of the conspiracy that was done in furtherance

of the object of the conspiracy.  A conspirator is liable for all acts of his coconspirators—

intended, unintended, or even actually forbidden—provided only that such acts be in

furtherance of the common purpose of the conspiracy.  

Another proviso of aiding and abetting and conspiracy law is the concept of

extended liability for crimes committed besides those originally contemplated.  Aiders

and abettors and conspirators are not only guilty of the crime(s) aided and abetted or

the object crime(s) of a conspiracy but are also liable for all other crimes committed by a

fellow principal that are a “natural and probable consequence” of the crime(s) originally

aided and abetted.  A natural and probable consequence is a result that is reasonably

foreseeable to the aiders and abettors to a crime or the members of a conspiracy.  

Whether a consequence is natural and probable is an objective test based on what

a person of reasonable and ordinary prudence would have expected.   

The following crimes committed during group crime situations have been found

to be the natural and probable consequences of the original crime aided and abetted or

the object crime of a conspiracy:

(1) A collective act of vandalism in rival gang territory led to an assault

with a deadly weapon against a rival gang member by one of the

vandalizing gang members.  All of the other gang members involved

in the vandalism were held liable for the assault.  
Gang Prosecution Manual 

41 Section 2.  Gang Group Crime Theories of Liability

and Investigation Considerations

(2) Several gang members involved in a robbery were liable for an

assault with a deadly weapon committed during the robbery by one

of their fellow perpetrators.  

(3) An agreement to shoot from a vehicle led to group liability for an

attempted murder.

(4) Gang members agreeing to fight in public were all held liable for the

attempted murder committed by one of their members against a rival

during the fight.

(5) A group of robbers were held jointly liable for the murder of the

victim by one of the perpetrators.

(6) A murder was a natural and probable consequence of a group plan

to commit an assault with a deadly weapon.

(7) Gang members who agreed to fight in public (a low‐grade

misdemeanor offense) were each found culpable for the murder of a

combatant on the other side of the fight committed by one of their

fellow gang members.

Interview suspects along the lines of foreseeability and expected outcomes.  For

example, ask:

Question:  Why did you bring a gun to the fistfight?

Predictable response:  I took the gun along because I might have needed it.   

Under these circumstances, it is hard to deny the gun’s use was foreseeable.

Other examples:

Question:  Why did you go to back up your fellow gang members in the fight?

Predictable response:    Because there might be violence, and my fellow gang

members might have needed help.

Question:  Why did you bring a gun when spray‐painting graffiti in rival gang

territory?

Predictable response:  Because if I had been seen by rival gang members while

spray‐painting, there might have been violence.   
Gang Prosecution Manual 

42 Section 2.  Gang Group Crime Theories of Liability

and Investigation Considerations

In each of these situations, violence was a planned, foreseeable outcome, rather

than a spontaneous coincidence.

CONCLUSION

The above is meant only as an introduction to the interplay of group crime

theories and how they relate to the investigation and prosecution of group gang crime.  

Familiarity with the theories enhances the odds of solving crime and successfully

prosecuting gang criminal conduct.    Work with these concepts, and remember that

there is no substitute for experience in this area.   

REFERENCES

Bursik, Robert J., and Harold G. Grasmick, Neighborhoods and Crime:  The Dimensions of

Effective Community Control, The Free Press, Glencoe, Illinois, 1993.

Esbensen, Finn‐Aage, Davis Huizinga, and Anne W. Weiher, “Gang and Nongang

Youth:    Differences in Explanatory Factors,” Journal of Contemporary Criminal Justice,

9:94–116, 1993.

Klein, Malcolm W., Cheryl L. Maxson, and Jody Miller, The Modern Gang Reader,

Roxbury, Los Angeles, California, 1995.
Gang Prosecution Manual 

43 Section 3. Filing the Gang Case

Section 3.

Filing the Gang Case

By 

Ronald J. Freitas 

Chief Deputy District Attorney 

San Joaquin County District Attorney’s Office 

Stockton, California 

INTRODUCTION

In many ways, gang cases may be the most complex cases filed by a prosecutor.  

Since a gang is a group of people, multiple defendants and complex litigation about

using their statements against one another should be expected.    Because gangs are

constantly recruiting, initiating, and training, expect juveniles to be involved.  Witnesses

are often hostile to law enforcement and will recant at trial.    A gang prosecution

generally involves extended or vicarious liability for aiders and abettors, conspirators,

or others involved in the criminal enterprise.  If the crime is murder, individuals may be

found guilty within the felony murder rule, provocative act murder, or other theories.

Filing a gang case may be extremely difficult.    Compounding your filing

decisions are many other factors.  Supervisors will want to be briefed about the case.  

Clerical and court staff need paperwork as soon as possible.    The jail, probation

department, and juvenile hall will also be awaiting your decisions.    The media will

want you to answer the questions the investigating agencies will not touch.  If charges

are filed, will the vertical prosecutions gang unit retain the case or will mainline or

another unit, such as homicide, prosecute?

The real issues, however, are simply what crimes were committed and who is

liable for them.  How you answer these questions and what charges you file with the

court will set the tone for this case from the beginning.  These charges, for example, will

greatly affect whether the defendant will remain in custody or be eligible for bail and

how much the bail will be.  These charges can affect the amount of resources that will
Gang Prosecution Manual 

44 Section 3. Filing the Gang Case

be spent on further investigation of the case.    The charges may also determine the

resources available to the defense.    The charges will affect later plea bargains and

indicated sentence judgments from the court, as well as the defendant’s eligibility for

probation and the terms of that probation, including registration requirements.

To decide which charges to file and against whom to file them, you must have an

unsurpassed understanding of the case.  You must also understand theories that extend

criminal liability to the participants.  Additionally, the prosecutor must be prepared to

decide whether juveniles should be tried as adults or remain in juvenile court.

One fundamental principle cannot be stressed enough.  As a prosecutor, you are

ethically bound to file charges only when there is a reasonable possibility of proving the

charges.  A typical filing standard reads, “The admissible evidence should be of such

convincing force that it warrant conviction of the crime charged by a reasonable and

objective factfinder after hearing all of the evidence . . . and after hearing the most

plausible, reasonably foreseeable defense that could be raised under the evidence

presented to the prosecutor.”1  Under no circumstances is this rule to be violated.  There

is not a different or lower filing standard for gang cases.  When tactical decisions are

discussed in this chapter, it will always be assumed that probable cause supports the

filings.  If probable cause does not exist to file charges, your decision is easy:  you do

not file charges.  On the other hand, once probable cause exists, aggressively prosecute

everyone who is responsible in the interests of justice.

PREPARING TO FILE THE GANG CASE

As a prosecutor, you must know more about your case than anyone else,

including the defense attorney or the judge.  You cannot be surprised or embarrassed

about problems with the evidence in your case.    By acknowledging and overcoming

these problems, you can confidently ask the jury to return a verdict of guilty at the end

of your trial.  Knowing everything there is to know about your case begins at intake.

While rushing to comply with constitutional and statutory scheduling, you must

obtain a great amount of information in a short period of time.  Reports generally will

not be completed, so you may have to rely on the statements and integrity of your

investigators.  Learning about the case includes learning not only the strengths but the

 

1 Uniform Crime Charging Standards, CDAA, p. II‐1.
Gang Prosecution Manual 

45 Section 3. Filing the Gang Case

weaknesses of the case.  The author has often been told the magic words, “the suspect

confessed,” only to later learn that what was really said was, “I shot back after the

victim shot at me.”  This is a long way from a confession.

To file the case, review whatever reports are available.   Quite often, detectives

will not have finished their reports but will have prepared affidavits for search‐and‐

arrest warrants that you should read.

When you speak with the investigators, ask multiple questions.  Obtain as much

information as you can about the defendant, the victim, the gangs involved, the area

where the crime happened, and the motive or reason the crime happened.    Become

familiar with witnesses and their biases or shortcomings.  Find out what other contacts

these people have with law enforcement or the criminal justice system.  Also determine

who has been untruthful during the investigation and why.

When establishing evidence, ask the following questions:   

9 What is the physical evidence?   

9 To what extent does the crime scene, injuries, or other evidence

support or contradict the victim, witnesses, or defendant?   

9 Does physical evidence exist that proves or disproves a victim,

witness, or defendant?    What are the opinions of the forensic

pathologist?   

9 Has a criminalist been contacted, and if so, for what?   

9 What will this expert be able to testify to?

Ask questions about the investigation:   

9 Are there legal issues that you need to be aware of regarding the

investigation, searches, or interrogations?   

9 What scientific testing is available to further the investigation?   

9 What other witnesses need to be contacted?   

9 Are there witnesses who need to participate in photographic or

physical lineups before the defendant appears in court or before his

picture appears in the newspaper or on television?   If so, make sure

that this is done so that outside sources will not later discredit the

identification as being suggestive.

In states where you have an option, you must decide whether to initiate the court

proceeding by grand jury or preliminary examination.    Generally, a preliminary
Gang Prosecution Manual 

46 Section 3. Filing the Gang Case

examination will be the best route, especially if your jurisdiction allows hearsay

evidence.    However, in certain instances, a grand jury indictment may be the better

route.  Because the grand jury proceedings are closed, witnesses may testify and have

their identities protected.  The author used a grand jury to protect a store owner in a

gang neighborhood who overheard the defendant confess to murder.  Using the grand

jury allowed him to have the witness’s name redacted from the transcript, protect the

witness from retaliation, and make arrangements to move the witness safely.   Grand

juries can also prevent long cross‐examinations that can tie up courts for days when

many defendants are involved.    A grand jury indictment is also a successful way to

arrest several members of a conspiracy at the same time.2

By having a thorough understanding of the strengths and weaknesses of the

case, the prosecutor can file the most appropriate charges to initiate the court

proceedings.

DIRECTING FURTHER INVESTIGATIONS

An unfortunate assumption is that once the case is filed, the job of the

investigating agency is done.    Nothing is farther from the truth in gang cases.  

Successful resolutions require teamwork from all members of the prosecution team.  

The greatest prosecutor cannot win a poorly investigated case.  Witnesses will have a

rapport with the detectives who initially took their statements—not with district

attorney investigators who are strangers to them.  Many witnesses are more cooperative

at trial if the detectives stay in contact with them and make arrangements for their

safety.    Small things, such as extra presence of patrol officers in the neighborhood,

create goodwill that pays off greatly at trial time.

Unfortunately, the axiom for prosecutors generally is that cases get worse after

filing.    Get commitments from the investigators so that the efforts they made in

developing a case warranting a criminal filing will continue through the pendency of

the litigation.    If necessary, set up a schedule for completing further investigations.  

Arrange deadlines with investigators for receiving their reports and providing

discovery to the defense.

 

2 This practice is used frequently in San Joaquin and San Diego Counties to arrest many members of a gang after making several

controlled drug buys on videotape.  The “buy‐bust” operation is a successful way to incarcerate many members of a gang in a single

day.
Gang Prosecution Manual 

47 Section 3. Filing the Gang Case

Investigate the defendant’s activities at the jail.   At a minimum, the defendant

will answer a classification questionnaire.    Such questionnaires usually determine

which gang the defendant associates with and who his enemies are.    Even the most

sophisticated defendant answers these questions truthfully for fear of being housed

with his enemies.  Records at the jail will show who visits the defendant, who is putting

money on the defendant’s books, and who picks up his property.   Knowing who the

defendant trusts can be very important; it may be a preview of your defense witness

list.  Some jails tape record jail visits.  Obtain copies of the nonattorney visits or phone

calls, especially the initial ones.    While defendants may try to minimize their

involvement to loved ones, they often make damaging admissions.    Have the

defendant’s mail screened and cell searched for gang indicia to prove his membership.  

Make arrangements for case detectives to attend the arraignment and, if possible,

introduce you to the victim or his family.  Try to arrange a brief meeting afterwards to

explain your job and the court process.  This is a good time to prepare the victim for the

long haul.  Reinforce, however, that you will always be available to answer whatever

questions the victim has.    Direct the victim’s family to those in your office who can

provide reimbursement for medical, counseling, and funeral expenses.    Take time to

answer their questions and return phone calls.

Make proper security arrangements with the courts.  The first court appearance

for a defendant is very emotional and often well attended by the friends and families of

both the defendant and the victim.    If the victim and defendant were rival gang

members, this is a recipe for disaster inside the courtroom, in the hallways, outside the

courthouse, and in parking lots.   Properly anticipating such a gathering may prevent

violence and create an opportunity to develop important intelligence regarding the

victim’s or defendant’s gang involvement.

About the same time as the first arraignment in a murder case, the family will be

planning a funeral.    Have your detectives monitor this ceremony and the related

gatherings.  If the victim was a gang member, it is not unusual for him to be dressed in

gang attire.    Floral arrangements may have gang insignias or symbols.    People

attending the funeral or participating in the ceremony, such as pallbearers, may identify

themselves as gang members by wearing gang attire or displaying hand signs.  

Additionally, members of the defendant’s gang may attend the funeral.  Violence can

break out between the rival gangs.  In one instance, gang members forced their way into

the ceremony, snatched the victim from the casket, and stomped on his body outside

the funeral home!
Gang Prosecution Manual 

48 Section 3. Filing the Gang Case

By having a strong understanding of the facts and developing a plan to continue

the gathering of evidence, the prosecutor will be better prepared to successfully

prosecute the criminal street gang member.

JUVENILE OR ADULT PROSECUTION

Depending on the jurisdiction, if the suspect is 17 years old or younger he may

be eligible for prosecution as an adult.  Several factors influence whether a minor can be

prosecuted in adult court, such as the crimes committed and the criminal history of the

minor.  If the minor is prosecuted in adult court, there will be a longer prison sentence.  

However, the minor is entitled to a jury trial.  If he remains in juvenile court, he will

receive a much shorter sentence but will serve the time in facilities better equipped for a

minor’s education and rehabilitation.  Minors in juvenile court are not entitled to jury

trials.

In some instances, prosecution in juvenile court may be more beneficial than in

adult court if the evidence is weak against the minor.   Also, if the juvenile is a small

player in the crime, juvenile court may be more appropriate.  Juvenile court may be a

better choice when the minor will be used to prosecute the adults in the crime by

testifying.    Finally, juvenile court rules frequently do not require independent

corroboration of a cosuspect’s statement regarding a juvenile’s involvement in a case,

whereas adult criminal procedure rules on accomplice statements usually do.   

The decision to prosecute a minor in adult or juvenile court should never be

taken lightly, and all factors should be considered.

CRIMINAL LIABILITY

   

If your defendant is the shooter, stabber, robber, etc., liability is direct and

generally easy, but what if your defendant is not directly liable?  What if the defendant

was the driver or provided the guns?  What if he participated in the planning stages but

is not present at the crime?  What if the defendant agreed to participate and then did

little during the commission of the crime; e.g., an unarmed backseat passenger along as

backup?  What if the crime committed was not the intended crime but a crime greater

than the one intended, yet it is a logical and direct consequence of the originally
Gang Prosecution Manual 

49 Section 3. Filing the Gang Case

planned crime?    What if an unintended victim is injured or killed?    Or what if one

defendant is not present when the crime occurs but had earlier agreed to participate?

The answers to many of these questions are contained in accomplice liability

laws, such as aiding and abetting or conspiracy.  Also, if the crime is murder, additional

theories of vicarious liability exist, such as the felony murder rule, provocative act

murder, and concurrent causation murder.

If the witness is an accomplice, his testimony alone may be legally insufficient to

convict a defendant.    An accomplice is someone who can be charged with the same

crimes as the defendant.    In California, an accomplice’s testimony requires some

corroboration connecting the defendant to the crime before the defendant can be

convicted.  If your case is based solely upon an accomplice’s testimony, you will not be

able to convict without additional evidence, such as a confession, eyewitness

identification, or physical evidence.

By understanding each of these concepts, their similarities, and differences, the

gang prosecutor may prosecute every defendant who is criminally liable to the fullest

extent of the law.

AIDING AND ABETTING

Principals are individuals who are criminally liable for the crime and include not

only those who directly commit the crime (e.g., a shooter) but also those who aid and

abet the crime.  If a defendant is an aider and abettor, he is as liable for the crime as if he

had committed the crime himself.

Mere presence at a crime does not make someone an aider and abettor.  An aider

and abettor must have an intent to promote the illegal conduct.    For example, if a

defendant’s girlfriend drives him to the liquor store and does not know he is going to

rob it, she is not an aider and abettor.   

State statutes on aiding and abetting differ on the required mental state of an

accomplice.    Some states require that the accomplice share the criminal intent of the

direct perpetrator, State v. Kendrick, 9 N.C. App. 688 (1970).   As one court put it:

“Complicity is not a theory of strict liability. It is not sufficient that the

defendant intentionally engaged in acts which ultimately assisted or
Gang Prosecution Manual 

50 Section 3. Filing the Gang Case

encouraged the principal. Rather, the complicitor must intend that his

conduct have the effect of assisting or encouraging the principal in

committing or planning the crime committed by the principal.”  

Bogdanov v. State, 941 P.2d 247 (Colo. 1997)

Other states require a lesser mental state for aiding and abetting. The accomplice

must only have knowledge or reason to know of the actor’s mental state, State v. Lewis,

514 N.W. 2d 63 (1994 Iowa Sup).

“The seller may not ignore the purpose for which the purchase is made if

he is advised of that purpose, or wash his hands of the aid that he has

given the perpetrator of a felony by the plea that he has merely made a

sale of merchandise. One who sells a gun to another knowing that he is

buying it to commit a murder, would hardly escape conviction as an

accessory to the murder by showing that he received full price.”

Backun v. United States, 112 F.2d 635 (4th Cir. 1940)

An aider and abettor need not be present to be liable.  If a gang member provides

guns for a drive‐by shooting on rivals, he is an aider and abettor, even if he stayed at

home during the shooting.

An aider and abettor is liable for the crimes committed unless there is a legally

sufficient withdrawal.   Generally, to withdraw from aiding and abetting liability, the

defendant cannot merely walk away from the crime; the defendant must announce his

withdrawal and do all in his power to prevent the commission of the crime.  

Aiders and abettors are common in gang crimes.  They generally are the drivers

in drive‐by shootings.    They also include individuals who furnish the stolen cars or

guns to commit the crimes or who serve as lookouts during the commission of a crime.  

In each of these examples, even though the defendants did not directly commit the

crime (i.e., shoot and kill the victim), they are aiders and abettors (or accomplices) and

are as guilty as if they had committed the crime.

Aiders and abettors, however, are not accessories.  While aiders and abettors aid

in the commission of the crime, accessories aid the principals only after the crime has

been committed.    For example, a girlfriend of a gang member who hides him or the

weapon after the crime is not an aider and abettor but an accessory.    Because her

participation begins only after the commission of the crime, her criminal liability is

limited to being an accessory.    A gang member who intimidates a witness after the

crime to prevent his testimony is also an accessory.  However, if one of the defendant’s
Gang Prosecution Manual 

51 Section 3. Filing the Gang Case

fellow gang members tells a friend of the victim to stay out of a gang fight or blocks

intervention while the fight is taking place, the fellow gang member is an aider and

abettor.

A difficult prosecution for aiding and abetting is a situation in which the

defendant is an unarmed passenger during a drive‐by shooting.   The defendant does

not act during the crime and may not be criminally culpable.  However, an argument is

made through gang‐expert testimony that this individual is an aider and abettor.  By the

act of entering the car and choosing to be present at the shooting, he can be a lookout to

identify the victims or to warn the perpetrator of police activity.  Also, this passenger

can act as backup to the shooter, having the ability to continue shooting if the initial

gunman is wounded or killed.    Investigators should be trained to establish such

information when interviewing a nonshooting backseat passenger.  This is a tough sort

of case that may better be handled as a conspiracy.

Gangs have used juveniles as shooters because of lesser penalties they

traditionally receive in juvenile court.  Females can be aiders and abettors too.  Gangs

may use females to carry weapons and drugs because they generally do not attract the

same level of police attention as males.    Female gang members can be lookouts and

even drivers in shootings for the same reasons.  When investigated, these females may

not be interrogated or searched as thoroughly as male gang members.  Do not jump to

conclusions about an individual’s guilt based solely on age or gender.

CONSPIRACY

A conspiracy is an agreement between two or more persons for an unlawful

purpose.  In some jurisdictions, the crime of conspiracy is complete when the agreement

for an unlawful purpose has been reached, State v. Condrey, 349 S.C. 184, 562 S.E.2d 320

(2002).  Other jurisdictions require an “overt act” in furtherance of the conspiracy, State

v. Heitman, 262 Neb. 185, 629 N.W.2d 542 (2001).  An overt act need not be criminal; just

an action taken toward the completion of the object of the agreement to commit an

illegal act.    In those jurisdictions requiring an overt act of conspiracy, liability is

established once the act is completed.   

Not every member of the conspiracy needs to commit an overt act; one member

committing one is sufficient, United States v. Leonard, 61 F.3d 1181 (5th Cir. 1995).  

Further, not every member needs to know who the other members are in the conspiracy

and that an overt act has occurred, Blumenthal v. United States, 332 U.S. 539, 68 S.Ct.248,
Gang Prosecution Manual 

52 Section 3. Filing the Gang Case

92 L.Ed. 154 (1947).    Examples of overt acts include obtaining weapons, stealing

vehicles, driving, or shooting or stabbing. Juries usually need not unanimously agree

which overt acts happened, but in some jurisdictions the overt acts must be pleaded in

the charging documents. In other jurisdictions, however, “it is not necessary for an

indictment to charge that an overt act was done pursuant to the conspiracy,” Am Jur 2d

Conspiracy.

The agreement in a conspiracy is the primary requisite act. The United States

Supreme Court stated, “The prohibition against criminal conspiracy, however, does not

punish mere thoughts; the criminal agreement itself is the actus reus,” United States v.

Shabani, 513 U.S. 10 (1994).    There is great uniformity among American jurisdictions

regarding what constitutes a sufficient agreement for conspiracy purposes and how

such an agreement is proven.   The following excerpt is a typical discussion on these

issues:  

  

“To obtain a conspiracy conviction, the government must prove that there

was an agreement between two or more participants to achieve a

particular illegal end. ‘The agreement need not be shown to have been

explicit. It can instead be inferred from the facts and circumstances of the

case. A tacit understanding will suffice to show agreement for purposes of

a conspiracy conviction. There need not be any written statement or even

a speaking of words which expressly communicates agreement.

Furthermore, the participants in a conspiracy need not be fully aware of

the details of the venture so long as they agree on the ‘essential nature of

the plan.’ Finally, evidence sufficient to link a particular defendant to a

conspiracy ‘need not be overwhelming,’ and may be demonstrated by

circumstantial evidence,”  

United States v. Amiel, 95 F.3d 135, 144 (1996).

The agreement need not be proven by direct evidence only; it may be proven by

circumstantial evidence.   

Some jurisdictions limit conspiracy liability to a misdemeanor.  See, for example,

State v. Carbone, 10 N.J. 329 (1952).  Some allow it to be charged as a felony, Gaines v.

Malone, 244 Ala. 490 (1943).  Some even allow an agreement to commit a misdemeanor

with an overt act to be charged as a felony, State v. Pooler, 141 Me. 274 (1945).  Check

your jurisdiction’s decisions.

Like aiding and abetting, a conspirator need not be present when the acts are

committed; and mere presence does not make one a conspirator.  To withdraw from a
Gang Prosecution Manual 

53 Section 3. Filing the Gang Case

conspiracy, a defendant must announce his withdrawal to the other known conspirators

and do all in his power to prevent the commission of the crime.  A conspirator is liable

for the crimes of the conspiracy unless there is a legally sufficient withdrawal.  Also, a

withdrawal must precede the overt act in those jurisdictions requiring one, State v.

Kaiser, 260 Kan. 235 (1996).    Finally, a withdrawal does not constitute a defense in

jurisdictions where an overt act is not required.  The crime is considered complete after

the involved parties agree to commit a crime, People v. Juarez, 158 Mich. App. 66 (1987).

Conspiracy is useful as a prosecution theory when the defendant who agreed to

engage in criminal activity has no further involvement.  If the defendant had aided by

action or words, he would be an aider and abettor.  However, if the defendant agrees to

participate in a drive‐by shooting on enemy gang members on rival turf but, instead of

driving or shooting, remains as a backseat passenger, this defendant may not be an

aider and abettor.    But just by agreeing to the crime, he is liable as a conspirator.  

Conspiracy does not require that a defendant do anything beyond agreeing to commit a

crime to become criminally liable in some jurisdictions.  In most jurisdictions, as long as

another member of the conspiracy commits an overt act, even those conspirators who

do nothing other than agreeing are liable.    This liability continues, absent a legally

effective withdrawal.

An additional benefit of conspiracy may be the opportunity to admit the

coconspirator’s statements.    A statement of coconspirators is a well‐established

exception to the hearsay rule, Lutwak v. United States, 344 U.S. 604 (1953).  A conspiracy

need not be charged for the hearsay exception to apply.  If, however, you have charged

a conspiracy, you may be in a better strategic position for a court to allow the hearsay

exception.

Conspiracies are punished for the agreed‐upon crimes; i.e., the target crimes.  So

if a gang member agrees to drive to rival territory and shoot his enemies but misses, he

is liable for conspiracy to commit murder.   He is not liable for conspiracy to commit

attempted murder.  Also, the conspiracy to commit murder is punished as first‐degree

murder, not second‐degree murder.  In this way, conspirators receive the punishment

for murder, even when no one was injured!

Conspiracy is a useful tool in prosecuting criminal street gangs.    Not only are

drive‐by shootings conspiracies, but conspiracies also include drug trafficking and the

activities of prison gangs.  
Gang Prosecution Manual 

54 Section 3. Filing the Gang Case

NATURAL AND PROBABLE  

CONSEQUENCES LIABILITY

The natural and probable consequences doctrine applies to both aiding and

abetting and conspiracy laws.  The doctrine applies when something other than what

was planned or intended happens.

A common example is an agreement to aid and abet in a gang fight against rival

gang members by attending and fighting.  In addition to a fight occurring, someone is

killed.   Another example is a defendant who claims he only agreed to go scare rival

gang members, and instead, someone is shot and/or killed.    When the natural and

probable consequences doctrine is applied in either of these examples, the defendant is

liable of murder, not the lesser crimes of assault or battery.  Since, in both examples, the

death was reasonably foreseeable, the defendants are not only criminally liable for the

crimes they agree to commit but for the murders as well.

The natural and probable consequences doctrine makes aiders and abettors and

conspirators liable not only for those crimes they aid and abet or conspire to commit,

but also for those crimes that are the natural and probable consequences of their

original criminal design.    A natural and probable consequence means reasonably

foreseeable.  If the crimes actually committed are reasonably foreseeable to the crimes

aided and abetted or agreed to, the defendant is liable for the greater crime, United

States v. Masotto, 73 F.3d 1233 (3d Cir. 1996).

The inquiry is defined in this way.  First, determine the crime that is aided and

abetted or agreed to.    Call this the “target” crime.    Next, determine what crime was

actually committed either instead of or in addition to the target offense.    This is the

“charged” crime.    The natural and probable consequences doctrine applies, creating

extended liability if the charged crime is reasonably foreseeable to the target crime.  

When the charged crime is reasonably foreseeable to the target crime, the aiders’ and

abettors’ or   conspirators’ liability extends to all other crimes that are the natural and

probable consequences of the original target offense, and they are placed (in a legal

sense) in the shoes of the direct perpetrator of the charged crime.

Going back to the above examples, is it reasonably foreseeable that someone will

die during a gang fight?  Is it reasonably foreseeable that someone will die when gang

members invade rival territory shooting guns?  Because both of these questions can be

answered “yes,” the defendants are liable for murder.
Gang Prosecution Manual 

55 Section 3. Filing the Gang Case

Whether the committed crime is reasonably foreseeable is a question for the jury,

not the defendants.  Therefore, it is no defense when a gang member claims he never

intended for anyone to die.    If the jury finds it reasonably foreseeable that someone

would die from the agreed crime, the defendant is guilty of murder.  If the crimes are

reasonably foreseeable to a reasonable person, the doctrine applies.    Also, liability

extends, even when the criminal parties contemplate and agree not to do the committed

crime, if the crime is reasonably foreseeable.  For example, if all the gang member agree

there will be no killing, but someone still dies, they are guilty if the death was

foreseeable.

A perfect example is the case of People v. Luparello, 187 Cal. App. 3d 410 (1986);

see also [Commonwealth v. La], 433 Pa. Super432 (1994).  Dr. Luparello was a chiropractor

who hired gang members to obtain information from Martin about the whereabouts of

Gadzinski, who had recently ended their romantic relationship. During a meeting at

Luparello’s home (during which the gang members were openly armed with deadly

weapons), one of the gang members stated that he was going to “thump” the person

from whom they wanted information. Luparello replied he would like the information

“at any cost.” The next evening, the gang members, while again armed with deadly

weapons, met with Luparello. They then proceeded to Martin’s house and killed him.

The next day, Luparello told someone that he hired some Mexicans who were going to

take care of Martin. The court concluded, “That a homicide resulted from a planned

interrogation undertaken ‘at any cost’ by armed men confronting an unwilling source is

unquestionably the natural and probable consequence of that plan. The evidence thus

supports Luparelloʹs liability for the conspiratorial acts.”

In People v. Montano, 96 Cal. App. 3d 221 (1979), Montano and his fellow gang

members pretended to be in a different gang to lure and assault a rival gang member.  

Once the victim joined them, they drove him to their turf.  Montano left, and then his

fellow gang members murdered the rival.  Because the murder was foreseeable to the

agreed conduct, Montano’s conviction for murder was upheld.

Through the natural and probable consequences doctrine, aiders and abettors

and coconspirators are liable not only for the agreed‐upon crimes but for those crimes

that are foreseeable if the plans change and more serious crimes happen.
Gang Prosecution Manual 

56 Section 3. Filing the Gang Case

THEORIES SPECIFIC TO MURDER

In many ways, murder cases are different.  They require increased investigation,

usually by a specially trained unit of the police department.   Generally, murders are

vertically prosecuted by the district attorney’s office by those with special training who

handle only murder cases.    Murders have special sentencing laws and may expose

defendants to the death penalty.  Murder cases have theories of extended liability that

are not available in other cases, in addition to aiding and abetting and conspiracy.

The previous theories discussed—such as aiding and abetting, conspiracy, and

the natural and probable consequences doctrine—are available in murder cases and

should be utilized.  However, theories such as the felony murder rule, provocative act

murder, and concurrent/proximate causation murder can be used only to extend

criminal liability for homicides.

Many gang‐related murders fall into long‐established categories of aggravated

liability.  The typical drive‐by shooting is usually a premeditated (planned beforehand)

and deliberated (reasons for and against were considered before the action was taken)

murder when a victim is killed.  Additionally, drive‐by murders are good examples of

lying‐in‐wait homicides.  It is common for gang members to slowly approach a group of

rivals in a car with the radio turned down and sometimes even the lights turned off.  By

the time the victims realize that a car has pulled up to the place where they are

congregating and that it contains rivals, it is too late.  They have been ambushed, which

falls into a lying‐in‐wait classification in most jurisdictions.  As explained below, there

are many other theories that seem tailor‐made for gang cases.   

THE FELONY MURDER RULE

When a victim is killed during the commission or attempted commission of a

felony, all persons aiding and abetting the felony are guilty of murder.  The qualifying

felony must either be specified by statute or be an inherently dangerous felony.  This

applies irrespective of whether the killing was intentional, unintentional, or accidental.  To

be liable, the defendant must aid and abet before the killing and not join in afterwards.  

Certain felonies committed in conjunction with the murder may increase the degree of

the murder to first degree.   In addition, the commission of certain felonies may be a

special circumstance and make the defendant eligible for the death penalty.  Unlike the
Gang Prosecution Manual 

57 Section 3. Filing the Gang Case

natural and probable consequences doctrine, the killing need not be foreseeable.  Once

the killing occurs during a specified felony, all defendants are liable for murder.   

The felony murder rule can be used in the case of an armed robbery with a

getaway driver.    Even if the robber and getaway driver agree that there will be no

killing, both are liable for murder if the store clerk is killed.  The robber and getaway

driver are guilty of murder, even if the killing was unintentional or accidental.  If the

defendants were burglarizing a home and their gun went off, accidentally killing the

homeowner, both defendants are guilty of murder, no matter whose gun it was and that

the gun went off accidentally.    However, the merger doctrine prevents the felony

murder rule from applying for the felonies of assault with a deadly weapon or

attempted murder.  

PROVOCATIVE ACT MURDER

What if defendants were engaged in a gun battle with the police?  During the shootout, a

police officer misses the defendants and hits a bystander or the store owner.  For what crimes are

the defendants guilty?  Are they only guilty of attempting to murder the police, or can they be

found guilty of the third party’s death?

The above scenario is an example of provocative act murder.  The defendants are

not only guilty of attempted murder of the police officers, they are also guilty of murder

because their actions provoked another, the police officer, to kill the third party.  When

someone other than a defendant kills, after the defendant commits an act provoking the

killing, the defendant is guilty of provocative act murder.    Provocative act murder

differs from felony murder because a defendant or codefendant is not the killer.  

However, the victim may be a bystander or a defendant.

For instance, during an armed robbery, a store clerk shoots at the defendant,

killing a customer or a codefendant.    Because the defendant provoked the killing by

another individual—the store clerk—the defendant is guilty of murder.    The

defendant’s acts provoking the killing must be intentional and deliberate.    The

provocative acts must be those in which the natural consequences are dangerous to

human life, such as brandishing or shooting a gun.

The provocative act must be close in time and directly related to the killing.  In

People v. Cervantes, 26 Cal. 4th 860 (2001), the defendant shot but did not kill a rival gang

member at a party. Minutes after the first shooting, a member of the rival’s gang shot
Gang Prosecution Manual 

58 Section 3. Filing the Gang Case

and killed a member of the defendant’s gang in retaliation.    The defendant was not

liable for murder for the second shooting because it was an independent and

intervening act and Cervantes was not guilty of murder.  The provocative act murder is

limited to murder of the second degree.

CONCURRENT CAUSATION

Recently, a new theory of extended liability, called concurrent causation, was

created to answer a situation common to gang disputes.

More and more frequently, gang members hold shootouts in public places.  

These gun battles on residential streets, in parks, or at businesses create a great danger

to the public and often result in the death of an innocent bystander.  If the killer can be

identified, he is guilty of murder.    Because the killer shot with the intent to kill, the

transferred intent doctrine finds him guilty of killing the unintended victim.

What about the other shooter?  Is he guilty only of attempted murder, with the

victim being the rival target who is now charged with murder?    What if the killer

cannot be determined by the forensic or police investigations?

In these gun‐battle situations, courts have found that all the shooters are guilty of

murder, irrespective of whether they were the killers.   Because both shooters directly

caused the bystander’s death by shooting at each other, both are guilty of murder.  The

concurrent causation theory reasons that since the shooters aided each other in killing

the bystander by shooting at each other without concern of harm to the public, they are

equally guilty of murder.  This theory is relatively new and may not be available in all

jurisdictions.

CONCLUSION

The filing of criminal charges initiates the prosecution in the courtroom.  

However, this is not when the criminal investigation ends, and prosecution should

make arrangements to continue developing the case.
Gang Prosecution Manual 

59 Section 3. Filing the Gang Case

Several decisions must be made by the prosecutor, such as whether the

defendant is directly liable or liable as an aider and abettor or coconspirator.  Through

these vicarious liability theories, the defendant is liable not only for the intended crimes

but also those that are reasonably foreseeable.    If the defendant is a minor, the

prosecutor must decide between adult or juvenile court.

Additional theories extend liability to nonkillers for murder cases.    Vicarious

liability theories in murder cases also include felony murder, provocative act murder,

and concurrent causation murder.

Prosecutors must use all theories available to them to properly hold gang

members accountable for promoting violence in the community.  The pursuit of justice

is best accomplished when the prosecutor commands a thorough understanding of the

theories that make gang members guilty for all the crimes they commit.    With this

knowledge, the prosecution team can aggressively arrest and prosecute everyone

responsible for the crimes.
Gang Prosecution Manual 

60 Section 4. Presentation of the Case 

Section 4.

Presentation of the Case

By 

Jarrett Wolf 

President, the Law Firm of Jarrett Wolf, 

Former Assistant State Attorney and 

DEA Agent, Miami, Florida 

INTRODUCTION

The trial of a gang case is not unlike other cases except that

witnesses tend not to cooperate, lie at all times, surprise the

prosecutor with theretofore unknown evidence, refuse to talk at

all, disappear, require expert testimony the judge never heard of,

etc.  In short, the trial can be a mess.1

Gang cases are among the most difficult to try.    Gang member witnesses, no

matter how many versions of a story they have previously given, may, while on the

stand, give yet another version.  Civilian witnesses may shut down completely.  A gang

expert, who is supposed to make sense of everything, may be met with an objection by

the defense and a perplexed look by the judge.   Reacting to situations such as these

requires litigation expertise, a very good understanding of the rules of evidence and the

law, and an intimate knowledge of the jurisprudence of gang prosecution.

Many aspects of criminal law and procedure are not significantly different in

gang cases as opposed to other criminal cases.  Other aspects are unique under the rules

of each state.  Certain aspects of gang cases, however, are of such overriding importance

that an effective discussion of gang prosecution cannot take place without their being

addressed.   

 

1 Keith Burt, Chief Deputy District Attorney, Office of the District Attorney, San Diego, California, “Prosecution of 

Street Gangs.” 
Gang Prosecution Manual 

61 Section 4. Presentation of the Case 

Gang membership is not a crime but a dynamic that will affect the evidence, the

manner in which it is presented, the witnesses, and the jury.    Until one begins to

approach these cases as “gang prosecutions,” rather than merely as cases involving

gangs, it is practically impossible to take them to trial.  This section includes anecdotal

discussion from gang prosecutions as well as case law and questions that must be asked

to get certain evidence legally introduced at trial.  

WITNESSES

Any prosecutor who has handled a gang case knows that gang violence

prosecution means dealing with difficult witnesses.  Witnesses in a gang case generally

fall into one of three categories:    (1) members of the victim’s gang who often prefer

retaliation over prosecution, (2) members of the defendant’s gang who will not testify

against their fellow gang member, or (3) members of the community who live in fear of

the gangs and refuse to get involved.  Each of these types of witnesses must be dealt

with differently and resourcefully.   

[V]iolent street gangs, which often engaged in drug trafficking, required a more

specialized approach.    For example, police stressed that street gang cases often

involve witnesses or victims who do not possess great jury appeal.  Furthermore,

these witnesses and victims may be reluctant or even unwilling to cooperate with

law enforcement due to intimidation and fear or out of loyalty to the gang.  

General prosecutors often lacked the special expertise required to solidify an

investigation containing problem witnesses or victims and bring it to trial.  

Opportunities to target high‐profile gang members were lost and prosecutors not

specifically charged with making an impact on the street‐gang problem had little

time for proactive involvement at the investigative stage.  As a result, criminal

cases involving street gangs tended to receive inadequate attention.2

Members of the Victim’s Gang as Witnesses

In State of Florida v. Herbert Wilson, the state charged that on June 3, 2000, the

defendant, Herb Wilson, shot Steven Rudolph.  Rudolph had been walking down the

street when Wilson jumped from a truck and opened fire.  Wilson shot several times at

Rudolph, who tried running for cover while returning fire with his own gun.  Rudolph

 

2 Urban Street Gang Enforcement, Bureau of Justice Assistance, 1997. 
Gang Prosecution Manual 

62 Section 4. Presentation of the Case 

was struck one time in his back but survived.  Wilson was arrested and charged with

attempted first‐degree murder with a firearm—a life sentence felony in Florida.   

The state’s theory was that Wilson shot at Rudolph on June 3 in retaliation for the

murders of Kevin Trought and Trevor Clayton on May 25 and that the murders of

Trought and Clayton on May 25 were in retaliation for the murder of Anthony Leggett

on May 23.    Related to those events, the state theorized, were the shootings of  

Quinton Toombs and Antoine Harris on May 21.  The Toombs and Harris shootings, the

state further theorized, were related to the nonfatal shooting of Trevor Clayton on  

May 14.   

From the time the first police officers arrived on the scene, Rudolph identified

Wilson as the person who had tried to kill him.  On July 31, 2000, Rudolph attended a

prefile conference at the State Attorney’s Office, during which an affidavit was

prepared for Rudolph detailing his recitation of the facts surrounding his being shot on

June 3, 2000.    On January 30, 2001, Rudolph was deposed by defense counsel for  

Wilson.  During that deposition, Rudolph testified that Wilson shot him on June 3, 2000.   

Ten months later, on or about May 25, 2001, Rudolph contacted Wilson’s attorney

directly and advised that he wished to drop the charges against Wilson.    Wilson’s

attorney scheduled a second deposition for the following Friday, June 1, 2001, at which

time Rudolph recanted his previous identifications of Wilson.    This time, Rudolph

testified that he “was going through a lot at the time of the shooting and was stressed

out.”    He later added that the police coerced him to identify Wilson as the shooter.  

Meanwhile, prosecutors learned from a confidential informant that Rudolph planned to

take care of Wilson on his own and that he was going to lie to secure Wilson’s release so

that he could shoot him.

It is probably difficult for traditional prosecutors to believe what transpired in

the Herb Wilson case, yet those events demonstrate how difficult it can be to get a

victimized gang member witness to testify against a rival gang member.  

Even when a victim is not trying to derail a prosecution to retaliate against the

defendant, the victim’s testimony or that of witnesses from the victim’s gang may be

difficult to secure.  Gang member witnesses are particularly difficult to bring in for trial.  

The code of silence among gang members and the fact that cooperating with police or

prosecutors will be viewed by other gang members as a sign of weakness are factors

that will negatively affect cooperation from gang member witnesses.  Gang prosecutors

should be familiar with the intricacies of their respective jurisdictions’ procedures

regarding rules to show cause, contempt proceedings, and material‐witness bonds.  
Gang Prosecution Manual 

63 Section 4. Presentation of the Case 

Judges can be reluctant to issue material‐witness bonds, so a prosecutor making

application needs to be prepared to educate the judge and ensure that the judge will be

free of any wrongdoing.   

Finally, once the prosecutor gets the gang member victim or member of the

victim’s gang on the stand, there will be yet another problem—bias.  Whether that bias

is real or imagined, prosecutors have to know that just getting the victim or member of

the victim’s gang on the stand is not the end of the battle.  It is preferable to stick to facts

that can be verified through other witnesses or evidence, such as what happened or

what the relationship is between the two gangs.

Members of the Defendant’s Gang as Witnesses

In State of Florida v. David Cortes, 761 So. 2d 1115, Fla. Dist. App. 3rd Dist., 2000

(unpublished opinion), several members of the Miami gang known as Take No Shit

(TNS) jumped a group of individuals they recognized as members of the rival gang

International Posse (IN/P).   By all accounts, this was to be a “beat down,” using fists

and feet to beat their rivals, whom they had fortuitously encountered one Saturday

night on a busy, nightclub‐lined street on Miami’s South Beach.    David Cortes,

however, fancied himself an up‐and‐comer in TNS.  In an effort to “catch rank,” Cortes

pulled a knife from his pocket and, in the melee of the assault, stabbed an IN/P member,

puncturing his lung.   

Following the assault, the TNS gang members ran to the car in which they had

driven to South Beach.  As they made their getaway from South Beach back to Miami’s

mainland, an excited David Cortes held up a bloody knife and proclaimed, “I stuck that

IN/P!”

The victim survived, but although he and his fellow IN/P gang members knew

they had been attacked by several TNS gang members, they could not identify all of

their attackers.    More important, no one could identify the actual stabber.    Gang

detectives began interviewing TNS members.    During the interviews, they learned

which TNS members had been involved, and they learned that Cortes had been the

stabber.  Moreover, detectives learned that it was not until after the attack that anyone

even knew that Cortes had possessed a knife.  This was, by all accounts, to have been

only a beat down.  Detectives then approached Cortes, who denied everything.   

Although one might argue that a stabbing is a natural and foreseeable outcome

of a gang assault, based on the specific facts of this case, prosecutors elected to file
Gang Prosecution Manual 

64 Section 4. Presentation of the Case 

battery and aggravated battery charges against Cortes’ fellow attackers and charged

only Cortes with attempted second‐degree murder with a deadly weapon.   

Cortes’ codefendants all pleaded guilty; however, none entered into a

cooperation agreement with the state.    Cortes went to trial, and the prosecutor was

faced with a situation in which the only way to prove identification—in other words,

that Cortes was the person who had stabbed the victim—would be to call Cortes’

former codefendant and fellow TNS gang member, Edgar Gonzalez, as a witness.   

The night before Gonzalez was to testify, the prosecutor and two gang detectives

met with Gonzalez to review his testimony.    The next morning, at the prosecutor’s

request, the gang detectives picked up Gonzalez from his house, drove him to court,

and babysat him all day, lest he walk out of the courthouse and never be seen again.  

Finally, Gonzalez was called to the stand.    During direct examination, he identified

Cortes as the stabber, recounting for the jury that when Cortes returned to the car, he

displayed the bloody knife and bragged about what he had done.    During cross‐

examination, though, Gonzalez stated that he made up the story about Cortes and the

knife and the bragging.  He also stated that the only reason he had come to court and

testified was that the prosecutor had threatened to have his probation violated if he did

not identify Cortes.  The jury, the judge, and the defense attorney were all surprised.  

The defense attorney terminated her cross‐examination, confident that she had just

destroyed the state’s case and that her client was on his way to an acquittal.   

Perhaps the only person in the room not particularly surprised was the

prosecutor.  Midtrial surprises like this one are not uncommon in gang cases.  During a

brief redirect examination, the prosecutor then locked Gonzalez into what he had just

stated on cross‐examination, thereby opening the door to Gonzalez′ prior consistent

statements.    The prosecutor next called the lead detective, through whom the state

introduced Gonzalez′ previously inadmissible hearsay statements to police about

Cortes, the knife, and the bragging.  For added measure, the prosecutor also called the

gang detectives who had been present the night before, to assure the jury that no one

had threatened Gonzalez in order to get him to testify.   

Cortes was convicted and sentenced to 25 years in prison, based on the testimony

of his own fellow gang member.
Gang Prosecution Manual 

65 Section 4. Presentation of the Case 

Members of the Community as Witnesses

Members of the community become both intended and unintended victims in

gang cases.  Victims may be the target of a robbery or burglary or some random act of

violence, but they may also be accidentally injured during the commission of a gang‐on‐

gang assault, such as in cases involving victims struck by stray bullets.   

While a few innocent civilians victimized by gang violence may be too afraid to

pursue prosecution, most are usually willing to come forward as witnesses.  The mere

presentation to a jury of an innocent victim in a gang case instantly communicates to the

jury all the evils of gangs, without the prosecutor ever saying anything reversible.  

Prosecutors must be wary, however, of a gang member defendant′s fellow gang

members intimidating a witness, either while the witness is on the stand or before the

witness testifies, such as in the hallways of the courthouse.   A prudent measure is to

have gang detectives ensure safe access to the courtroom for witnesses.

Innocent‐bystander witnesses are much more reluctant to come forward than

innocent victims, for obvious reasons.  Unlike their victim counterparts, these witnesses

have very little incentive to testify.    For most, the idea of doing their civic duty or

contributing to a better community is far outweighed by the fear of retaliation from

gang members.  A prosecutor can try to persuade these witnesses to cooperate, but in

truth, it is difficult to argue with their logic in not wanting to participate.    The

possibility of a material‐witness bond exists, but a prosecutor should seriously consider

whether to lock up an innocent civilian just because that person is afraid to testify

against gang members.

One important way to objectively protect witnesses and to subjectively gain their

continued cooperation is by keeping a defendant detained pretrial.  Thus, a defendant’s

first appearance is an important proceeding and should be attended by both the gang

prosecutor and the lead detective.  There, the prosecutor should give the magistrate an

applicable treatment of the bond statute, arguing for an increased bond or, when

applicable, no bond.

Another important way to ensure cooperation is by dealing with the problem of

witness reluctance ahead of time.  The gang prosecutor already knows the geographic

areas from which gang cases are most likely to come.  By being proactive and having a

presence in the community, the prosecutor will not be viewed as a stranger but as

someone whom victims and witnesses can trust.
Gang Prosecution Manual 

66 Section 4. Presentation of the Case 

Cooperating Defendants

One last type of witness for which the gang prosecutor should be prepared is the

witness who was a participant in the crime.    Cooperating defendants are often

necessary in gang cases to give the jury a complete understanding of what happened or

who did it.  The process of presenting flip witnesses, however, is something that begins

long before the witness takes the stand.  (A flip witness is a defendant who has been

offered limited‐use immunity in exchange for cooperating testimony.)

The first thing a prosecutor has to consider is who to flip.    Obviously,

prosecutors should want to strike a balance between those defendants least culpable

and those able to provide the evidence needed to prove the case.   Shooters, stabbers,

and rapists are not the defendants prosecutors want to flip.  Rather, prosecutors should

be seeking people such as the driver or a passenger actively looking for victims in a

drive‐by shooting, someone who was involved in an assault but did not present a

weapon, or someone who was present at the scene and may have aided and abetted the

crime by cheering everyone on but who did not actually touch or strike the victim.

Part of selecting the right cooperator involves interviewing defendants under the

conditions set out in an immunity letter.  Such an immunity letter might be referred to

as a Kastigar letter or a queen for a day letter3; however, regardless of its name, its

purpose is the same.  In the letter, written to the defendant’s attorney, the prosecutor

should state that it is his understanding that the defendant is interested in speaking

with law enforcement in hopes of resolving his current charges.  The conditions of such

an interview should be set out in the letter and will ordinarily confer limited‐use

immunity for a defendant′s testimony.    The letter should not, however, provide

derivative‐use immunity.  Sample language is as follows:

 

3

 In Kastigar v. United States, it was found that the United States can compel testimony from an unwilling witness 

who invokes the Fifth Amendment privilege against compulsory self-incrimination by conferring immunity, as 

provided by 18 U.S.C. 6002, from use of the compelled testimony and evidence derived therefrom in subsequent 

criminal proceedings, as such immunity from use and derivative use is coextensive with the scope of the privilege 

and is sufficient to compel testimony over a claim of the privilege. Transactional immunity would afford broader 

protection than the Fifth Amendment privilege and is not constitutionally required. In a subsequent criminal 

prosecution, the prosecution has the burden of proving affirmatively that evidence proposed to be used is derived 

from a legitimate source wholly independent of the compelled testimony. 

Proffer or "queen for a day" letters are written agreements between federal prosecutors and individuals under 

criminal investigation that permit these individuals to tell the government about their knowledge of crimes, with the 

supposed assurance that their words will not be used against them in any later proceedings. (The individuals can 

either be witnesses, subjects, or targets of a federal investigation, although it is subjects and targets who provide 

most proffers.) 
Gang Prosecution Manual 

67 Section 4. Presentation of the Case 

Pursuant to our conversations, I understand that your client is interested in

speaking with the State Attorney’s Office regarding his involvement in the

conspiracy to traffic in cocaine, for which he is presently charged.    I further

understand that your client is interested in entering into these discussions in

hopes of eventually being able to resolve his current charges.

If your client is willing to cooperate with the State Attorney’s Office and law

enforcement, I will grant him limited‐use immunity for his testimony.    No

statements provided by him in this matter pursuant to this agreement will be

offered into evidence against him, other than a prosecution for perjury in the

event that he did not provide truthful information.    The obligation of truthful

disclosure includes an obligation to provide the attorneys and law enforcement

officers with any documents, records, or other tangible evidence within his

custody or control relating to the matters about which he is questioned.

The state of Florida and the United States government remain free to use

information derived from the debriefing, directly or indirectly, for the purpose of

obtaining leads to other evidence that may be used against your client.    Your

client expressly waives any right to claim that such evidence should not be

introduced because it was obtained as a result of the debriefing.  This is to obviate

the need for a Kastigar hearing.  Furthermore, the state and/or the United States

government may use statements made in the debriefing and all evidence derived

directly or indirectly therefrom for the purpose of cross‐examination, if your client

testifies at any trial contrary to information he has provided.   This limited‐use

immunity agreement does not apply to any crime of homicide.    No additional

promises, agreements, or conditions have been entered into other than those set

forth in this letter.  I hope this letter clarifies the conditions under which I would

be willing to speak to your client.

If the defendant and his attorney agree to the conditions, an interview is

arranged and attended by the defendant, the defense counsel, the prosecutor, and

investigators.    It should be anticipated, the letter notwithstanding, that it is highly

unlikely a defendant is being 100 percent truthful from the outset.  Over the course of

the interview or even follow‐up interviews, the prosecutor should be able to assess the

value of this individual as a witness by answering the following questions:   

 Does he have the necessary evidence?  

 In other words, does he know what happened or who did it?   

 Will his testimony prove a crime and/or identification?   

 Is the evidence admissible?   
Gang Prosecution Manual 

68 Section 4. Presentation of the Case 

 In other words, how does he know it?   

 Did he witness it firsthand?   

 Did he acquire the information through coconspirator statements

or is it just ′′word on the street′′ hearsay?   

 Will the witness stand up to cross‐examination?   

 Has he previously been convicted of a felony or a crime involving

dishonesty?   

 If so, how many times?   

 How great is his motive to cooperate?   

 Obviously, he is going to want to resolve the instant case, but what

other issues, such as probation or parole violations, must also be

factored into the equation?

Having made the decision to flip a codefendant, the prosecutor should reduce

the agreement to writing.    Plea agreements should set forth all the conditions of the

agreement, and prosecutors should anticipate that the agreement will be used during

cross‐examination and introduced into evidence.   

One thing to consider is that plea agreements often contain a polygraph

provision, even though Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), prohibits

polygraph results from being admitted.    Frye should not, however, motivate a

prosecutor to forego polygraph examination of a cooperating defendant if the

agreement calls for it, lest the argument be made that the prosecutorʹs reason for not

polygraphing the witness was that the prosecutor himself did not believe the witness.  

Polygraph results are not admissible.  But the conscious decision by a prosecutor not to

polygraph a defendant who has signed a plea contract agreeing to a polygraph may be

admissible.    If a contract calls for a polygraph, a polygraph should be given.    If no

polygraph is going to be given, the contract should not provide for it.

Preparing a jury to accept the testimony of a flip codefendant is a topic discussed

in the section on jury selection, but the theme is essentially this:    Nobody likes a

tattletale, but everybody wants to know what happened.   Who better to tell us what

happened than somebody who was there and participated?

In presenting the codefendant, prosecutors should not attempt to hide anything.  

If he is in jail, he should be wearing his jail clothes.  If he has been brought to court from

prison, he should, ideally, be wearing his prison clothes.  Some state prison systems do

not allow inmates to travel in their prison uniforms, instead sending them from prison

to jail in their civilian clothes, where they are then given jail uniforms.  The idea is that

prisons are able to account for all uniforms by ensuring that the uniforms never leave
Gang Prosecution Manual 

69 Section 4. Presentation of the Case 

the facility.  A phone call from a prosecutor to the prison, however, can sometimes get

prison officers to send an inmate to court with his prison uniform.  This is a small detail

but one that the prosecutor may want to consider if, when presenting the cooperator,

the idea of letting the flip codefendant mitigate his sentence by cooperating is balanced

by the flip codefendant’s accepting responsibility for his actions, pleading guilty, and

getting on with his sentence.  Incidentally, cooperators should be pleading GUILTY, not

nolo contendere or no contest.

GANG EVIDENCE

When compared with individual criminal behavior, gang crime is unique.  

Rather than occurring as snapshots, gang crimes occur as part of a filmstrip.    To

understand the instant crime, it is often necessary to understand a preceding crime, the

history between the defendant and victim, or the history between the gangs to which

each belongs.   In other instances, the relationship between perpetrators of a crime—

common gang membership—may be relevant to proving they acted in concert.

Violent crimes, such as assaults and murders, can be motivated by nothing more

than rivalry between two groups.  Violent crimes (such as robbery) and property crimes

(such as burglary and theft), regardless of whether the gang members committing the

crime ever share the proceeds with the entire gang, are often facilitated by the

relationship among the people committing the crimes—common gang membership.  

The testimony of gang member witnesses is often skewed in favor of or biased toward

or against a defendant or victim.   

Gang prosecution as an area of law is relatively new.  However, by considering

gang crime at its core—group criminal behavior—appellate courts, particularly in

California and Illinois, have carved out an area of law without which gang prosecution

would cease to exist.    As a general rule, where gang evidence is relevant, it is

admissible.

The touchstone consideration herein is whether the evidence concerning the

defendant’s gang affiliation was relevant to the charges filed.  Where the information is

relevant, it is admissible, despite any prejudice toward the accused from its disclosure.  

The probative value of the evidence outweighs the prejudicial impact.  An accused may

not insulate the trier of fact from his gang membership where it is relevant to a

determination of the case, simply because prejudice attaches to that revelation, People v.
Gang Prosecution Manual 

70 Section 4. Presentation of the Case 

Rivera, 495 N.E. 2d 1088 (Ill. App. 1 Dist. 1986), citing People v. Hairston, 263 N.E. 2d 840

(Ill. App. 1970);  People v. Calderon, 424 N.E. 2d 671 (Ill. App. 1981); and People v. Deacon,

473 N.E. 2d 1354 (Ill. App. 1985).   

Proof of gang membership is relevant and admissible where there is sufficient

proof of a relationship between such affiliation and the crime charged (e.g., to show a

motive or common purpose), and where its relevance is so established, such evidence

need not be excluded merely because of its tendency to prejudice the defendant, People

v. Anderson, 505 N.E. 2d 1303 (Ill. App. 1 Dist. 1987), citing People v. Hairston, 263 N.E 2d

840 (Ill. App. 1970); People v. Jackson, 424 N.E. 2d 1207 (Ill. App. 1 Dist. 1986); and People

v. Calderon, 424 N.E. 2d 671 (Ill. App. 1981).   

It is proper to introduce evidence of membership in a gang or any type of group

that relates to a question, such as motive.  Thus, it has repeatedly been held that it is

proper to introduce evidence that is unpleasant or negative pertaining to an

organization where it is relevant to motive or to the subject matter at trial.    In  

In re Darrell T., 90 Cal. App. 3d 325 (1979),  the court discussed evidence concerning the

history of various juvenile gangs as it pertained to the proof of the existence of a motive

relative to the crime of murder.    In the case within, gang membership was quite

relevant.  The victim and some of his companions were admitted members of a gang

that was inside the territory or turf of another gang.  Additionally, appellant Bazurto

admitted having been a past member of the gang that claimed the scene of the crime as

its territory, People v. Frausto, 135 Cal. App. 3d 142 (1982), citing People v. Dominguez,

Cal. App. 3d 481 (1981) and People v. Perez, 114 Cal.  App. 3d 470 (1981).

Gang evidence is admissible to prove motive, intent, identity, conspiracy,

knowledge, principal, preparation, plan, absence of mistake or accident, and bias, as

well as to explain the demeanor of a witness.   

Evidence of this type is usually considered in the context of Fed. Rule of Evid.

404(b) or its equivalent in state evidence codes. Under these rules, evidence of other

crimes, wrongs, or acts is not admissible to prove the character of a person to show

action in conformity therewith. It may, however, be admissible for other purposes, such

as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident, provided that upon request by the accused, the

prosecution in a criminal case shall provide reasonable notice in advance of trial, or

during trial if the court excuses pretrial notice on good cause shown, of the general

nature of any such evidence it intends to introduce at trial, Fed. Rule of Evid. 404(b).  
Gang Prosecution Manual 

71 Section 4. Presentation of the Case 

Most gang evidence, however, is not collateral but is inextricably intertwined,

thus taking it outside the purview of 404(b) analysis. In other words, it would be

impossible for the jury to understand the case being tried without understanding the

gang dynamics of the case. The United States Court of Appeals Eleventh Circuit, in

United States v. Williford, 764 F. 2d 1493 (1985), stated, “Evidence of an uncharged

offense arising from the same series of transactions as that charged is not an extrinsic

offense within Rule 404(b).” For example, understanding the rivalry that existed

between two gangs and that members of the victim’s gang had earlier in the day

assaulted a member of the defendant’s gang will help a jury understand the motive and

intent of the defendants; in other words, why they drove to the turf of the victim’s

gang—each person in the car armed with a firearm—and all but the driver were

shooting at the victim, who was innocently walking down the street.   

The decision to admit evidence that falls under Rule 404(b) or is shown to be

intertwined in the crime depends on Fed. Rule of Evid. 403. Although relevant,

evidence may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of cumulative

evidence, Fed. Rule Evid. 403.4 The United States Supreme Court, in Old Chief v. United

States, 519 U.S. 172 (1997), stated, “The term ‘unfair prejudice,’ as to a criminal

defendant, speaks to the capacity of some concededly relevant evidence to lure the

factfinder into declaring guilt on a ground different from proof specific to the offense

charged.”

THE JURISPRUDENCE OF GANG PROSECUTION

The following section provides examples of courts allowing the introduction of gang

evidence for various relevant purposes. Gang evidence has been used in court for

several decades in jurisdictions throughout the United States.    There has emerged a

substantial body of law regarding the circumstances when gang evidence has been

admitted and excluded.   A good example of the extent to which gang evidence has

been considered in several states is found in a Virginia Court of Appeals case, Utz v.

Commonwealth, 28 Va. App. 411, 422, footnote 2 (1998):

 

4

 See California Evidence Code, Section 352 for an equivalent state statute. 
Gang Prosecution Manual 

72 Section 4. Presentation of the Case 

“Siler v. State, 705 So. 2d 552, 556‐59 (Ala. Crim. App. 1997) (admission of

past gang‐related activity and rivalry was directly relevant to show

motive and state of mind; due to its direct relevance, it was not overly

prejudicial); State v. Romero, 178 Ariz. 45, 870 P.2d 1141, 1147–48 (Ariz. Ct.

App. 1993) (evidence of defendant’s gang affiliation established a link

between the crime and gang rivalry and was relevant to establish motive;

trial court properly balanced probative value with prejudice); People v.

Williams, 16 Cal. 4th 153, 940 P.2d 710, 738 (Cal. 1997) (in gang‐related

case, gang evidence is admissible if relevant to motive or identity, so long

as probative value not outweighed by prejudicial effect); State v. Taylor,

239 Conn. 481, 687 A.2d 489, 500 (Conn. 1996) (finding evidence of gang

affiliation relevant and not overly prejudicial to establish motive for

murder); People v. Knox, 241 Ill. App. 3d 205,608 N.E. 2d 659, 663, 181 Ill.

Dec. 586 (Ill. Ct. App. 1993) (explaining that gang‐related evidence ‘is only

admissible where there is sufficient proof that gang membership or

activity is related to the crime charged,’ holding that gang‐related

evidence was sufficiently linked to offense and was, therefore, admissible

to provide motive for otherwise inexplicable murder); State v. Toney, 253

Kan. 651 862 P.2d 350, 352–53 (Kan. 1993) (evidence of defendant’s gang

membership and expert testimony about gang conduct was relevant and

admissible in government’s case‐in‐chief to show motive for murder);

Hoops v. State, 681 So. 2d 521, 529–31 (Miss. 1996) (upholding admission of

evidence of defendant’s involvement in gang that had rivalry with

victim’s gang to show motive for otherwise unexplained assault; finding

that probative value outweighed danger of unfair prejudice); Tinch v.

State, 113 Nev. 1170, 946 P.2d 1061, 1064–65 (Nev. 1997) (upholding

admissibility of evidence of gang affiliation where it was relevant to

charged offense and probative value was not substantially outweighed by

danger of unfair prejudice; ‘concluding that the [gang‐related] evidence

was relevant to the gang enhancement charge and could show motive’);

People v. Connally, 105 A.D. 2d 797, 481 N.Y.S. 2d 432, 433 (N.Y. App. Div.

1984) (limited evidence of gang affiliation was relevant and admissible to

prove motive and intent); State v. Campbell, 78 Wash. App. 813, 901 P.2d

1050 (Wash. Ct. App. 1995) (holding that evidence of defendant’s gang

affiliation was sufficiently linked with crime and was probative to show

motive and premeditation, supporting state’s theory of case; trial judge

carefully limited evidence so as to avoid undue prejudice).”
Gang Prosecution Manual 

73 Section 4. Presentation of the Case 

Motive

It is proper to introduce evidence of membership in a gang or any type of group that

relates to a question in issue, such as motive, People v. Frausto, 185 Cal. Rptr. 314 (App.

1982).  For example, gang expert testimony on the role of respect in gang culture was

relevant to provide a motive for an otherwise inexplicable act by assisting the jury in

understanding why the defendant would attack a person seeking to avoid a fight, State

v. Jackson, 714 N.W. 2d 681 (Minn. 2006).    In a drive‐by shooting case, an Illinois

appellate court found that gang testimony regarding a gang war was relevant since the

defendant admitted he knew that his armed passengers were going to shoot at rival

gang members. The court said, “Gang evidence is relevant when it corroborates a

defendant’s confession . . . [and] is admissible despite the prejudice that attaches if it is

relevant and particularly if it is crucial in establishing motive,” State v. Davis, 335 Ill.

App. 3d 1 (2002).

Motive and Identity

The defendant’s membership in the Diamond Gang was relevant to his identity

as a participant in the group action and relevant to his credibility as a witness.   The

defendant’s membership in the Diamond Gang was also relevant to his motive for

participation in the charged offenses, People v. Contreras, 192 Cal. Rptr. 810 (App. 1983).   

Intent

The court implicitly found the requisite specific intent by finding that the drive‐

by shooting here was “a crime of shooting at somebody with a shotgun” and that Sergio

and Leonardo “both had knowledge of what was going to happen” (i.e., someone

would be killed), In re Sergio R., 279 Cal. Rptr. 149 (Cal. Rptr. 2 Dist. 1991).  In a case out

of Hawaii, evidence of a prior gang‐related shooting was relevant to prove the intent to

enter a conspiracy, State v. Renon, 73 Haw. 23 (1992).

Knowledge and Principal

Evidence established that the juvenile was not merely present at the scene of the

robbery but acted with requisite knowledge of criminal purpose so as to be the aider

and abettor in facilitating the robbery of an automobile, Matter of Jose T., 282 Cal. Rptr.

75 (Cal. App. 2 Dist. 1991).
Gang Prosecution Manual 

74 Section 4. Presentation of the Case 

Principal

A defendant was found to be a principal in a case in which the evidence was not

contradicted that the defendant was one of those present at the discussions held by the

Crips immediately before their venture was undertaken and that, along with the others,

he departed the murder scene as soon as the shooting had occurred, People v. McDaniels,

App., 166  Cal. Rptr. 12 (1980).

Aiding and Abetting

Gang evidence is critical at times to prove aiding and abetting liability.  The Ohio

Supreme Court addressed the relevancy of gang evidence in light of aiding and abetting

in a case where the defendant actively encouraged a member of his gang to shoot his

gun at someone as retaliation for an earlier gang‐related incident.

“This court has held that the state need not establish the identity of the

principal in order to convict an offender of complicity. To support a

conviction for complicity by aiding and abetting...the evidence must show

that the defendant supported, assisted, encouraged, cooperated with,

advised, or incited the principal in the commission of the crime, and that

the defendant shared the criminal intent of the principal. Such criminal

intent can be inferred from the presence, companionship, and conduct of

the defendant before and after the offense is committed.”; State v. Johnson,

93 Ohio St. 3d 240 (2001) (in a gang motivated shooting gang evidence was

allowed to show defendant aided and abetted in the murder of a three

year old bystander).

In re T.K., 109 Ohio St. 3d 512, 514 (2006).

Conspiracy

Gang evidence is often admissible to establish the existence of a conspiracy, State

v. Torres, 47 Conn. App. 149 (1997) [Gang membership and leadership position in the

gang were found to be relevant to the criminal charge of conspiracy to commit murder

because it helped establish that the defendant’s actions of being at a café and

communicating by walkie‐talkie were carried out to advance a plan to harm a rival

gang member.]; United States v. Hartsfield, 976 F.2d 1349 (1992) [gang membership

relevant to prove a conspiracy charge in order to show defendant and coconspirator

were both members of a particular gang whose main purpose was to distribute drugs].  
Gang Prosecution Manual 

75 Section 4. Presentation of the Case 

While mere association with perpetrators of crime does not establish participation in a

conspiracy, it does provide a starting point.  Here, the evidence shows much more than

the “mere association” of appellant with the conspirators.  The members of the “family”

(a gang) and their supporters quite clearly formed a plan to hunt down and assault B‐

Wingers to retaliate for the stabbing of a “family” member, In re Nathaniel C., 279 Cal.

Rptr. 236 (Cal. App. 1 Dist. 1991).  In a Pennsylvania case, evidence of the victim’s and

defendant’s gang affiliations and rivalries and a specific past incident where a member

of the defendant’s gang was stabbed by a member of the victim’s gang were properly

admitted to help establish a conspiracy.    The court declared, “Evidence of relations,

conduct of circumstance of the parties is relevant circumstantial evidence to establish a

conspiracy. [Thus,] evidence of the gang activity involved in the present case is highly

probative of whether a conspiracy existed,” Commonwealth v. Gwaltney, 497 Pa. 505

(1982).  

In another case, the defendant was present at one or more discussions

concerning Reggie T.’s fight with Daryl W. and the plan to get even.   The defendant

traveled to a rival gang’s (The Fives) area in a caravan of three cars with nine or ten

other youths.  Before the shooting occurred, the defendant (along with Michael P. and

Nicardo P., members of the same Crips faction as the defendant) was identified by

McCormick as one of the boys standing with McDaniels when the victim was killed.  

Michael P., Nicardo P., and the defendant ran back to the car together.  After the car

failed to start, the defendant and Nicardo P. ran from the scene on foot.  The evidence,

although circumstantial, is clearly sufficient to support a conspiracy finding, In re

Darrell T., 979 App., 153 Cal. Rptr. 261.   

Bias

Membership of the defendant and a defense witness in a prison gang whose

tenets required its members to lie, cheat, steal, and kill was admissible to show bias of

the witness, United States v. Abel, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed. 2d 450 (1984).  Gang

membership was also found admissible in a Florida case to show two defense witnesses

had a motive for lying because the defendant and they were all members of the same

gang, which created an “unusual loyalty,” Martin v. State, 797 So. 2d 6 (Fla. Ct. App.

2001).   In the Kansas case of State v. Knighten, 260 Kan. 47 (1996), the defendant was

charged with the first‐degree murder of a correctional officer. The defendant’s

supporting witnesses attesting to his alibi were all members of the same gang. Gang

membership was admissible to the issues of witness bias and credibility.  The court held

that “proof of bias is almost always relevant because the jury, as finder of fact and
Gang Prosecution Manual 

76 Section 4. Presentation of the Case 

weigher of credibility, has historically been entitled to assess all evidence which might

bear on the accuracy and truth of a witness’ testimony.”   

LITIGATING THE ADMISSIBILITY OF  

GANG EVIDENCE

Particularly in emerging jurisdictions, where gang prosecution is a relatively new

concept, litigating the admissibility of gang evidence can be tricky.  Even in established

jurisdictions, gang evidence might need to be litigated on a case‐by‐case basis.    The

admissibility of gang evidence should be litigated pretrial.   The pleading on which a

prosecutor should rely is a “Memorandum of Law:    Points and Authorities on the

Admissibility of Gang Evidence.”  Typically, such a pleading will summarize the facts

of the case and then give an offer of proof and argument, essentially laying out all the

reasons why the gang evidence is relevant.    Next, the pleading should include a

discussion of cases where gang evidence was similarly relevant and admitted.  

Obviously, in an emerging jurisdiction, the majority of cases cited will be from other

states.   

In State v. Tran, 847 P. 2d 680 (Kan. 1993), the Kansas Supreme Court found itself

having to look to other jurisdictions, such as California and Illinois, for guidance in a

gang case.   

Two groups had gone to a skating center one night:  one group was made up of

two brothers, Toan and Toan Q., and their girlfriends―the other group consisted of

several members of the Local Boys, a street gang, of which the defendant, Hieu Tran,

was a member.  Inside the skating rink, a fight occurred between one of the brothers

and Jimmy Nguyen, a Local Boy.  The fight was broken up by a security officer, who

arrested Jimmy Nguyen for assault and battery.   

The two brothers and their girlfriends, leaving the skating rink, headed towards

the parking lot.  Kevin Nguyen followed and stated, “You fought my friend.  Why don’t

you fight me?”    The four were confronted by “a whole bunch of guys,” and Kevin

Nguyen then said, “Why’d you mess with my brother?  You mess with him, you mess

with me.”
Gang Prosecution Manual 

77 Section 4. Presentation of the Case 

Eight to ten people attacked the two brothers.    Hieu Tran, the defendant, was

seen pulling a gun from his pocket and pointing it toward Toan’s head.  A shot rang

out, and everybody scattered.  Toan died from a head wound.  

At trial, Officer Brad Carey, a gang intelligence officer for the Wichita Police

Special Community Action Team (SCAT), identified Hieu as a member of the Local

Boys gang.  Officer Carey’s identification was based on observations of Hieu associating

with other gang members on two occasions and on information provided by a reliable

informant.

On appeal, the defendant claimed that he was denied a fair trial by the admission

of gang characteristics and purported gang associations.  The defendant reasoned that a

gang is not simply a group of kids who hang out together.  According to the defendant,

“The term ‘gang’ in its current usage connotes opprobrious implications.  The use of the

word ‘gang’ takes on a sinister meaning when it is associated with activities.”    The

Kansas Supreme Court disagreed, stating:  

Evidence of gang association or characteristics may only be admitted if relevant.  

Relevance is present in the case at bar.  (Tran, at 686.)

The Tran court agreed with the state that the evidence of gang membership was

relevant to establish Hieu’s motive for the crime.  Following the fight inside the skating

rink, Corby Turner heard a group of three to five Vietnamese males talking about the

incident.  Turner heard the people say they were going to get even, and they knew how

they were going to do it.   According to the state, that conversation established a link

between the fight in the skating rink and the fight in the parking lot that led to Toan’s

death.  The motivation or desire to get even with the brothers who were involved in the

arrest of Jimmy Nguyen, a member of the Local Boys, led to the confrontation in the

parking lot.  Hieu was a participant in the fight in the parking lot.  Hieu made sure the

gang retaliated against the brothers when he shot Toan in the back of the head.   

Absent evidence of gang affiliation, the jury would wonder why Hieu felt the need

to get even with the brothers.  Again, evidence of gang affiliation established an

alliance among Jimmy, who started the initial fight inside the skating rink; Kevin,

who started the fight in the parking lot; and Hieu, who fired the shot that killed

Toan.    Without evidence of gang affiliation, the state’s attempt to establish a

motive for the crime would have been impeded.  (Tran, at 688.)   

The Tran court went on to analogize the motive concept in that case  

to the concept adopted by the United States Supreme Court in United States v. Abel,  
Gang Prosecution Manual 

78 Section 4. Presentation of the Case 

469 U.S. 45, 105 S.Ct. 465, 83 L.Ed. 2d. 450 (1984), that gang evidence may be admitted to

prove bias.   

Additionally, the Kansas Supreme Court found that several facts in Tran

supported the admission of gang testimony as res gestae and acknowledged that they

had recently approved the admission of gang evidence on a res gestae basis in State v.

Walker, 843 P. 2d 203 (1992) and State v. Hooks, 840 P. 2d 483 (1992).

ADMISSIBLITY OF GANG EXPERT TESTIMONY

In People v. Langford, 602 N.E. 2d 9 (Ill. App. 1 Dist. 1992), a properly qualified

gang expert was allowed to testify that the defendant was a member of one of the two

gangs involved in that case.  He recounted the history of the gangs and described the

continuing dispute between them over the right to sell drugs in the area where the

murders at issue in that case occurred.    The expert witness testified that it was the

dispute that motivated the defendant to shoot the victims, who were members of the

rival gang.

In People v. Buchanon, 570 N.E. 2d 344 (Ill. App. 1 Dist), a gang specialist was

allowed to testify, among other things, that the Insane Unknowns and the Imperial

Gangsters were rival gangs that belonged to different “umbrella” organizations

(Buchanon, at 348).

In People v. Gamez, 286 Cal. Rptr. 894 (Cal. App. 4 Dist. 1991), “[T]hree Santa Ana

police officers testified as experts regarding their knowledge of gangs in general and the

Southside and Highland Street gangs in particular.  One of the officers opined that the

shooting was a ‘payback’ for a prior shooting by Highland Street against Southside.  

Another opined the defendant was a member of Southside.    Photographs, taken in

October 1987, showing the defendant with other known Southside members throwing

the gang’s hand signs were introduced to corroborate the officers’ opinions.  Based on

his own personal knowledge, crime and victim reports, conversations with other

officers, and statements by gang members, one officer gave his opinion that Southside

was a criminal street gang engaged in a pattern of criminal street gang activity.”  

Relying on In re Darrell T., 90 Cal. App. 3d 325 (1979) and People v. McDaniels, 107 Cal.

App. 3d 898 (1980), the Gamez court found the use of gang expert testimony admissible.
Gang Prosecution Manual 

79 Section 4. Presentation of the Case 

QUALIFYING THE GANG EXPERT

Below are sample predicate questions for qualifying a detective to testify as a

gang expert and to offer opinion testimony.

Background

= Please state your name.

= How are you employed?

= How long have you been employed as a police officer?

= To what unit are you presently assigned?

= Prior to being assigned to the gang unit, to what units were you

assigned?

= While in the uniform patrol division and the street narcotics unit, did

you have occasion to come into contact with gang members?

= Are you presently a member of any task force?

= What is the mission of the Violent Gang Task Force?

= As a member, what specifically do you do?

= How often does the task force conduct such an operation?

= The intelligence meetings to which you referred—how often are they

held?

= Are you a member of any professional associations?

= What is the mission of the     Gang Investigators Association?

Training and Expertise

= Have you received any specialized training in the areas of gang

enforcement, investigation, or prosecution?

= Have you ever taught any courses?

= To whom are the gang awareness courses taught?

= Do you keep current on literature, articles, or studies in the areas of

gang enforcement, investigation, or prosecution?

= What are some of the materials you have read?

= By whom were they written?

= Have you ever written any materials on those subjects?
Gang Prosecution Manual 

80 Section 4. Presentation of the Case 

Experience

= As a gang detective, do you have occasion to personally come into

contact with gang members?

= How often?

= Is that always in a custodial context?

= Describe a typical casual contact with a gang member.

= In your five years as a gang investigator, your two years as a

detective in the narcotics unit, and your two years in the uniform

patrol division, approximately how many gang members have you

spoken with?

= Is it your experience that gang members have a unique culture, with

its own habits, trends, customs, language, values, and morals?

= Is it part of your job as a gang detective to keep current on gang

culture—the habits, trends, customs, and language?

= How do you do that?

Information Sharing

= As a member of the gang unit, do you share what you learn with

other gang detectives?

= Do other gang detectives share information with you?

= Do you share what you learn with police officers in other units?

= How do you do that?

= Do you also share information with other police agencies?

= How do you do that?

= As a gang detective, do you have the responsibility to help maintain

an ongoing gang file by collecting information and intelligence and

forwarding it to the gang crime analyst?

= Is it part of your job to be familiar with gang rivalries?

= Is it part of your job to be familiar with gang alliances?

Courtroom Experience

= Have you ever testified before in court in a gang case?

= How many times?

= Have you ever been recognized by a court as an expert witness in the

field of gangs?  
Gang Prosecution Manual 

81 Section 4. Presentation of the Case 

= How many times?

= Were you allowed to testify regarding gangs, gang membership, gang

culture, gang rivalries, and gang alliances?

Gangs in Question

= Are you familiar with the term “Chicago‐style” as it relates to gangs?

= Please explain.

= Do “Chicago‐style” gangs align themselves by nation?

= Please explain what these nations are and how they relate to one

another.  

= Are there different levels of participation within gangs?

= Do “Chicago‐style” gangs have a hierarchy?

= Describe the typical hierarchy of a “Chicago‐style” gang.

= How does one progress or move through the ranks?

= Are you familiar with a gang called TNS?

= For what do the initials TNS stand?  

= When did you first come into contact with members of TNS?

= Is TNS a “Chicago‐style” gang?

= To what nation does TNS belong?

= Does TNS have colors?

= What are their colors?

= How do they display the colors blue and red?

= Does TNS have any signs or symbols?

= What are their signs or symbols?

= Where do they put these signs or symbols?

= Are you familiar with a gang called IN/P?

= For what do the initials IN/P stand?

= When did you first come into contact with members of IN/P?

= Is IN/P a “Chicago‐style” gang?

= To what nation does IN/P belong?

= Does IN/P have colors?

= What are their colors?

= How do they display the colors blue and red?

= Does IN/P have any signs or symbols?

= What are their signs or symbols?

= Where do they put these signs and symbols?

= What is the relationship between TNS and IN/P?
Gang Prosecution Manual 

82 Section 4. Presentation of the Case 

Defendant’s Membership

= Are you familiar with the defendant Mauricio Solarzano?

= Do you know him by any other names?

= What is the street name by which you say you know him?

= When did you first come into contact with “Desca”?

= Where was that contact?

= With whom was the defendant hanging out?

= Did you memorialize that contact in any way?

= Is this the field interview (FI) card you prepared?

= Did you ever come into contact with the defendant on other

occasions?

= Did you also prepare FI cards on those occasions?

= Are these those cards?

= Do you have an opinion as to whether the defendant, Desca, is a

gang member?

= What is that opinion?

= On what do you base that opinion?  

= To what gang do you believe Mauricio Solarzano, also known as

Desca, belongs?

JURY SELECTION

Because of the seriousness of gang crime and the serious threat to public safety

posed by gang member defendants, gang prosecution is ultimately about making the

most problematic cases prosecutable and winnable.    From dealing with problem

witnesses, to litigating the admissibility of gang evidence, to introducing that evidence

through a gang expert, gang prosecutors should be able to explain evidence to jurors in  

common‐sense terms.   

Jurisdictions vary over how involved attorneys for the parties will be in jury

selection.    Certain jurisdictions are so restrictive that jury selection is essentially

conducted from the bench, although attorneys for each side might submit certain

questions.  In other jurisdictions, the attorneys are able to voir dire prospective jurors for

a reasonable period of time.  “Reasonableness” is determined on a case‐by‐case basis.   
Gang Prosecution Manual 

83 Section 4. Presentation of the Case 

Jurors’ reactions to gangs vary.  Some jurors want to convict all gang members

based on gang membership alone, regardless of whether there exists any evidence that

the defendants actually committed the crimes charged.    At the other end of the

spectrum are jurors who are so afraid of retaliation that they will never be able to

convict, regardless of how overwhelming the evidence.   A gang prosecution requires

jurors who are somewhere in between.   

Below are sample predicate questions for discussing gangs during jury selection,

designed to seat a fair and impartial jury whose members will listen to the evidence and

render a true and correct verdict.

Juror’s Basic Attitude Toward Gangs

= What do you think of when you hear the word “gang”?

Personal Knowledge About Gangs

= In what area do you live?

= Are there gang problems in your neighborhood?

= Have you ever seen graffiti in your neighborhood?   

= Does any of it appear to be gang graffiti?

= Have you ever tried to interpret it?

= Are you aware of any gang rivalries in your neighborhood?

Gangs Involved

= Have you ever heard of a gang called TNS or Take No Shit?

= Where?

= What effect will it have?

= Have you ever heard of a gang called IN/P or International Posse?   

= Where?

= What effect will it have?

= Have you ever heard of:

 Folk Nation?

 People Nation?

 Outlaws (not the motorcycle gang)?

= Have you ever had personal contact with gang members?

= Has anyone here ever been a gang member?
Gang Prosecution Manual 

84 Section 4. Presentation of the Case 

= Is anyone here currently a gang member?  

= Does anyone have any family members who are gang members or

who they think are gang members?  

= Does anyone have friends or know anyone who is a gang member?

= Have you ever seen anyone whom you believed to be a gang

member?  Why did you believe that person to be a gang member?

= Are your children confronted at school by gang members?

= Are your children confronted at school by gang problems/issues?

= Have you ever been the victim of a gang‐related crime?

= Do you know anyone who has been a victim of a gang‐related crime?

= Have you ever witnessed a gang‐related crime?

Juror’s Knowledge of Gang Culture

Discuss with the jurors the following in regards to gang culture:

= Dress

= Understanding that dress is not the “be all” and “end all” of gang

membership

= Nowadays, everyone looks like a gang member

= Tattoos

= Graffiti

= Hand signs

= Slang

= Monikers

= Territories (hoods or turf)

= Source of knowledge—personal or from the media

= Television shows or movies watched or books read on gangs or

about gangs

Gang Problem

= Do you think there is a gang problem in (city/county)?

= What are your feelings about that problem?   

= Do you think it is blown out of proportion, or is it increasing in

seriousness?   

= Do you understand that this trial is not supposed to be your

opportunity to get back at every gang member in the county?   
Gang Prosecution Manual 

85 Section 4. Presentation of the Case 

= Gang evidence will be introduced to help you understand the crimes

charged.  No one is charged with being a gang member.  The judge

will instruct you that it is not against the law to belong to a gang, but

it is against the law to commit the crimes charged.

Gang Membership and Motive to Commit Crimes

= Rival gangs

= Increased status in gang catching rank/respect

Reluctant Witnesses

= Witness intimidation and/or fear of retaliation is a motive to lie.

Juror’s Fear of Retaliation as an Obstacle to Deliberation in a

Gang Case

= I expect the victim to testify in this case, and I expect it to come out

that he is a gang member.  I should also point out that this is an open

courtroom and some of the victim’s friends may attend part of this

trial.   Likewise, some of the defendant’s friends may attend part of

this trial.    I also want you to understand that your personal

information, such as your address at which you received your jury

summons, is not made available to the defendant, the victim, or any

of the witnesses.  

= Would the fact that the victim is a gang member affect your ability to

render a guilty verdict?  In other words, do you think that as a gang

member he deserves what he gets, even if that means being the

victim of a crime?

= Similarly, if the charges are not proven beyond a reasonable doubt,

would you have any problem finding the defendant not guilty?  In

other words, would you be able to acquit the defendant and not be

afraid of what the victim or the victim’s gang might think?

= Likewise, if the charges are proven beyond a reasonable doubt,

would you have any concerns about convicting the defendant?   In

other words, would you be able to convict the defendant and not be

afraid of what the defendant or the defendant’s gang might think?  
Gang Prosecution Manual 

86 Section 4. Presentation of the Case 

General Factors to Consider

= Offensive language.

= Circumstantial evidence.

= How do we know what someone’s intent is?    

= Actions speak louder than words.

= Sympathy factor—defendant is young.

= Not to consider punishment or consequences of verdict.  That is the

judge’s job.  We all have separate jobs.   

= What would you do if during deliberations, a juror told you he was

not convinced the defendant committed the crime but wanted to

convict the defendant anyway because he believes all people who are

arrested are guilty?   

= What would you do if during deliberations, a juror told you he was

convinced the charges had been proven beyond a reasonable doubt

but did not want to convict the defendant because he felt bad about

what might happen to the defendant at sentencing?

= Report juror misconduct to court . . . it does not make you a tattletale.  

We are just relying on everyone.  

Legal Theories That Extend Criminal Liability

= Principal theory/instruction

= Three Musketeers—“all for one” and “one for all”

CONCLUSION

Gang cases are not easy.  They are time‐intensive and labor‐intensive.  Because of

the nature of street gangs, specialized prosecutors can expect multiple codefendants

and serious charges.  Management of such cases can be overwhelming and requires that

the prosecutor have experience and expertise in dealing with complex litigation

issues—such as 404(b) evidence, Bruton issues5 multiple juries, declarations against

 

5

 Bruton v. United States, 391 U.S. 123 (1968), granted a new trial, finding error in the admission in a joint trial of a 

nontestifying codefendant's confession which directly implicated the defendant, 391 U.S. at 125–26, 137. The court 

held this violated the Confrontation Clause of the Sixth Amendment to the Constitution, even though the jury had 

been instructed not to consider the codefendant's statement on the issue of the defendant's own guilt. 
Gang Prosecution Manual 

87 Section 4. Presentation of the Case 

interest, prior testimony, and self‐defense—as well as experience and expertise dealing

with gang issues, such as what gang evidence is, where it comes from, for what it can be

used, and how it is introduced.  Gang prosecutors often handle serious crimes involving

serious defendants.  Meticulous care must be taken at each stage.  There is no substitute

for preparation.
Gang Prosecution Manual 

88 Section 5. Sentencing Issues in Gang Cases

Section 5.

Sentencing Issues in Gang Cases

By 

John Anderson, Assistant District Attorney 

Orange County District Attorney’s Office 

Supervisor of the TARGET Gang Unit 

Santa Ana, California 

INTRODUCTION

Sentencing issues in a gang case are important from the time of initial

consideration of the case for filing.  An appropriate disposition of a case (or a potential

case) is often a function of the charges filed, a decision to delay the filing of a case, or

deferring the entry of judgment following a guilty plea.    The less serious an offense

committed by a gang member, the more options exist to fashion a disposition that

punishes the offender but still allows an opportunity for rehabilitation.    The more

serious and violent felony gang offenses usually are met with the most severe charges

and the harshest possible punishments.

The fact that the majority of street gang members are most criminally active

between the ages of 14 and 24 creates additional difficult sentencing issues.    Gang

prosecutions require that prosecutors be thoroughly familiar with juvenile and adult

court procedures and know when a juvenile may be prosecuted under the adult law.  It

is not uncommon for juvenile and adult street gang members to be suspects in the same

case.  This dynamic dictates split juvenile and adult court prosecutions at least until the

juvenile suspects are remanded to adult court.   

Sentencing in gang cases is a complicated process, depending on the type of

crime, the range of possible punishments for the crime, on what charges the defendant
Gang Prosecution Manual 

89 Section 5. Sentencing Issues in Gang Cases

is convicted, how the defendant was convicted (by plea or trial), and whether the

defendant was initially placed on probation following a conviction.   

TYPES OF CRIMES

Most states classify crimes based on the seriousness of the offense as measured

by the level of violence or the amount of loss.  Different classes of crimes carry different

levels of punishment.  Some public disturbance offenses, such as making unreasonable

noise or disturbing the peace, often are considered noncriminal infractions punishable

by fines or community service hours but no jail time.  The first level of criminal offense

is a misdemeanor, which is punishable by fines and typically up to one year of local jail

time.  Common gang‐related misdemeanors include vandalism, challenging another to

fight in public, simple assault, and possession of alcohol by a minor.   

Felonies are serious or violent crimes punishable by confinement in state prison,

sometimes for life, or even by death in many states for special‐circumstance murders.  

Often, states have sentencing schemes that allow for more custody time based on how

the crime was committed (use of a weapon or firearm, for example), the nature of the

victim (for instance, an elderly person or a government official), the motivation for the

crime (for example, hate crimes based on race or sexual orientation), or the amount of

loss.    Common gang‐related felonies include rape, robbery, attempted murder, and

murder.    

In between felonies and misdemeanors is sometimes a crossover category of

crimes that can be charged as either felonies or misdemeanors.    The initial filing

decision rests with the prosecutor, but during the pendency of a case, a charge filed by

the prosecutor as a felony can be reduced to a misdemeanor.    A court’s decision to

reduce such an offense from a felony to a misdemeanor usually cannot be overturned

absent a clear abuse of discretion by the court.  Common gang‐related offenses falling

into this category of crime include assault with a deadly weapon, joyriding, and grand

theft.   

More than 70 percent of states have enacted some form of antigang crime

legislation.  A number of states have laws that focus on so‐called criminal street gang

activity.    Criminal street gang statutes create crime and sentence enhancements

(additional custody time) for crimes committed for the benefit of, in association with, or

at the direction of a criminal street gang.    The statutes have elaborate definitions of
Gang Prosecution Manual 

90 Section 5. Sentencing Issues in Gang Cases

what constitutes a criminal street gang and what activity is included in criminal street

gang activity.    Precision in the definitions helps avoid the constitutional infirmity of

vagueness in the laws but also creates difficulty in proving the charges.  

ALTERNATIVES TO CRIMINAL FILINGS AND

DIVERSION PROGRAMS

The initial question when a case is presented by the police to the prosecutor for a

filing decision is whether the case warrants a filing.  Just because a case can be filed does

not always mean it should be filed.  Prefiling alternatives can be explored, especially in

juvenile cases involving minor offenses committed by first‐time gang offenders (e.g.,

possessing spray paint).   

Police often counsel juveniles and their parents in nonviolent and nonserious

first‐time offenses.    The idea behind such a strategy is informing the parents of the

juvenile’s activities and enlisting the parents’ help in keeping the juvenile offender on

the straight and narrow.  Sometimes police departments have the juvenile and parents

come to the station for a more formalized counseling session.   

If a case is referred to the juvenile authorities (usually the probation department)

for presentation to the prosecutor’s office for a filing decision, the authorities sometimes

have the discretion to place the juvenile offender on informal probation.  In such cases,

the charges are never presented to the prosecutor if the juvenile offender completes the

requirements of the informal probation.    These programs are typically limited in

application to first‐time petty offenders.  

If a case is filed in either juvenile or adult court, there are a number of

alternatives to a judgment of guilty.  Diversion programs allow many types of offenders

to participate in structured counseling programs.    Narcotics violations (usually only

possession offenses, not possession for sale, sale, or manufacturing cases) are the most

common crimes eligible for diversion programs.  In California, narcotics offenders are

allowed to participate in three different drug diversion programs.    Each allows

offenders a chance to complete narcotics offender diversionary programs in exchange

for a dismissal of their cases.    Gang members are notorious substance abusers and

therefore prime candidates for narcotics diversion programs.  Other types of diversion

programs cover petty theft and domestic violence cases.
Gang Prosecution Manual 

91 Section 5. Sentencing Issues in Gang Cases

FILING DECISION

The decision to file a criminal case is the first step in which sentencing is

considered.  Gang case filing decisions are subject to the same ethical standards as any

other case.  A prosecutor should not file a case unless, after a careful consideration of all

of the available admissible evidence and taking into consideration any possible defense

apparent in the available evidence, the prosecutor is satisfied there is a reasonable

probability of proving the truth of the charges beyond a reasonable doubt to an

objective fact finder (a jury or a judge in a court trial).  Prejudice toward a gang member

suspect (or gangs in general) or public pressure never justifies a case filing if there are

insufficient facts to support the filing.

Sentencing implications related to the charging decision include that some

charges make a defendant ineligible for probation upon conviction or require

mandatory minimum sentences upon conviction.   It is critical at the time of filing to

obtain and thoroughly review all of a defendant’s prior conviction records to ensure

that all applicable crimes and enhancements (i.e., strikes, prior felony convictions, and

prior prison terms) are alleged.    Finally, while sentencing considerations start at the

filing of a case, getting the sentence requires a successful prosecution in the trial court

and no loss of the conviction on appeal.   Thus, a prosecutor must remain completely

within ethical boundaries from the filing of a case through its conclusion.  It is senseless

to secure a conviction that will be reversed on a new trial motion before sentencing or

on appeal.   

Adult or Juvenile Court

Given the youthful age of many gang offenders, often a decision must be made

when charges are filed whether to seek to try a juvenile as an adult or keep the offender

in juvenile court.  Most states allow for minors as young as 16, 14, or even 12 years old

to be tried as adults if a juvenile offender is found unfit for juvenile court proceedings.  

This process requires filing charges in juvenile court and setting the case for a fitness

hearing.  With serious and violent felonies, the threshold of unfitness is lower than for

misdemeanor or nonserious/violent offenses.    Factors considered in a fitness hearing

include the gravity of the current offense, the level of sophistication of the minor

offender in the commission of the offense, the minor’s previous record, and the prior

attempts by the juvenile court to rehabilitate the offender.
Gang Prosecution Manual 

92 Section 5. Sentencing Issues in Gang Cases

Some states allow for the direct filing of certain criminal charges against a

juvenile in adult court without the need of a fitness hearing.  In California, for example,

crimes committed in association with, for the benefit of, or at the direction of a criminal

street gang are chargeable at the prosecution’s discretion in adult court without judicial

acquiescence.    Further, some states require the filing of adult court charges against

juveniles in murder cases (at least where the minor was the direct perpetrator of the

murder) or serious sex offenses.  (See California Welfare and Institutions Code, Section

707.)      

A minor offender faces much less severe consequences staying in juvenile court

than being remanded to adult court.    There are usually age limits on how long a

juvenile offender can be incarcerated (i.e., until 18, 21, or 25 years old).  In adult court,

the juvenile offender may face as much as life in prison without possibility of parole.  

The only true prohibition on the sentences imposed on juvenile offenders tried as adults

is that juveniles cannot face the death penalty.   

The decision of where to try a juvenile gang member is obviously an important

one.  It is a decision that requires careful consideration of the offense and the offender.  

If there is a good chance the gang member may rehabilitate while incarcerated in

juvenile facilities, it is sometimes best to keep the minor in juvenile court by not direct

filing or requesting a fitness hearing.  On the other hand, if the offense is sophisticated,

with much violence, and/or the gang member offender is a recidivist, it is probably best

to seek an adult conviction to better protect society by the longer periods of

incarceration available in adult court.    Even when a juvenile is prosecuted in adult

court, there are opportunities for the minor to be returned to juvenile court on the

motion of the prosecutor or sometimes at the discretion of the court at sentencing.     

Types of Charges  

In adult court, the charges filed affect possible sentences.  Conduct may often be

charged in different ways and sometimes for strategic reasons.    A gang‐related

attempted murder, for example, can also be charged as an assault with a deadly

weapon as a backup charge to the attempted murder.  The sentence for an attempted

murder (especially one committed with premeditation and deliberation) is much

greater than the sentence for an assault with a deadly weapon.  Charging both crimes

allows the jury to find a defendant guilty of both changes or just the lesser assault

charge.  Sometimes a prosecutor does not want to give the jury that option and charges

only an attempted murder.  That charging decision forces the jury to convict or not on

the greater charge of attempted murder.    
Gang Prosecution Manual 

93 Section 5. Sentencing Issues in Gang Cases

In states with anti‐street gang laws, the decision to seek conviction on those

charges can significantly alter a possible sentence.  In California, for example, felonies

committed for the benefit of, in association with, or at the direction of a criminal street

gang have several sentencing consequences.    First, the crimes receive an additional

punishment of two, three, or four years for regular felonies; five years for serious

felonies; and ten years for violent felonies.  Second, crimes punishable with straight life

sentences (which are normally eligible for parole consideration after 7 years) require a

defendant to serve 15 actual years before becoming eligible for parole consideration.  

Third, all felonies committed for the benefit of, in association with, or at the direction of

a criminal street gang are “strikes” for future sentencing under the three‐strikes law.  

Fourth, certain violent felonies are punishable by life in prison, if committed for the

benefit of, in association with, or at the direction of a criminal street gang.    Finally,

misdemeanor offenses committed for the benefit of, in association with, or at the

direction of a criminal street gang (e.g., vandalism, fighting in public, and simple

assault and battery) are chargeable as felonies.  (See generally, California Penal Code,

Section 186.20 et seq.)

Often the crimes committed by gang members carry significant sentences even

without the additional time imposed under anti‐street gang laws.  For example, it is not

uncommon for an attempted murder or a kidnapping for specific purposes (such as

carjacking, rape, or robbery) to carry a life sentence.  Carjacking, robbery, and assault

with a deadly weapon also carry significant prison terms, especially if weapons were

used or the victim was injured.    Nearly all gang crime convictions (and frequently

juvenile convictions called adjudications) are strikes for future sentences.    It is not

uncommon for gang members to reach their 18th or 19th birthdays with multiple strike

convictions.    As such, it is critical to carefully examine gang member defendants’

criminal histories for prior strike convictions whenever filing a gang case.  Obviously,

strikes affect any sentence imposed on the new case and may subject a youthful gang

offender to a sentence of life in prison.

Gang members also commonly perpetrate street violence using firearms.  Many

states significantly increase the punishment for crimes committed with a firearm.  

California, for example, imposes an additional mandatory term of three, four, or ten

years in prison for the use of a firearm in nonviolent felonies.   (See California Penal

Code, Section 12022.5.)    The penalty for using a firearm in violent felonies is

significantly higher.    In violent felonies, the use of a gun (showing it or pointing it)

carries a mandatory 10‐year extra prison term, discharging the firearm carries a

mandatory 20‐year additional prison term, and discharging a firearm causing death or

great bodily injury requires an additional prison term of 25 years to life.  Most firearm

use enhancements require the personal use of a firearm.    In California, firearm use
Gang Prosecution Manual 

94 Section 5. Sentencing Issues in Gang Cases

enhancement applicability is specifically expanded for gang member accomplices

committing a crime.  For gang members jointly perpetrating a crime, all are punished

equally for firearm use by one of the gang members if the underlying crime was being

committed for the benefit of, in association with, or at the direction of a criminal street

gang. (See California Penal Code, Section 12022.53.)    Other states allow for such

expanded firearm use enhancements for all accomplices involved in a felony crime (or a

specific category of crime, e.g., violent felony).  

METHOD OF CONVICTION

The method of conviction has great impact on the sentencing consequences of the

finding of guilt.  Guilty pleas come in a few different forms.  The most common is a plea

negotiated between the defense and the prosecution.  In exchange for pleading guilty, a

defendant is commonly given a reduction in the number of crimes that must be

admitted or a lighter sentence.  Negotiated dispositions require a court’s concurrence in

the soundness of the deal and the determination that the disposition is not against the

public interest as being too light.  A plea bargain should always require a defendant to

give up the right to appeal.  The terms of the plea can also include restrictive probation

terms that allow police officers to search the defendant without probable cause to

believe a new crime is being committed while the defendant is on probation.

The second most common plea is that of a defendant pleading guilty to an

indicated sentence by the presiding judge.  Under either scenario, the defendant admits

guilt before trial and receives a lighter sentence in exchange for an early admission of

guilt.  Guilty pleas to the court often allow a defendant to avoid a harsher punishment

desired by the prosecution.    In another type of plea, a court indicates a lid or a

maximum sentence that the court will impose at a later sentencing date.    At the

sentencing hearing, both sides present evidence or argument on what the sentence

should be.  A major shortcoming of pleas to the court is that a defendant must plead

guilty to all of the charges.  A court typically cannot dismiss charges on its own motion.    

Guilty pleas require a knowing and voluntary waiver of rights from a defendant.  

Specifically, defendants must give up the right to remain silent, confront, and cross‐

examine witnesses and the right to a jury trial.    They must further be advised of all

direct consequences of their guilty pleas (length of incarceration or deportation, for

example).  Finally, defendants must offer a factual basis for their guilty pleas, describing
Gang Prosecution Manual 

95 Section 5. Sentencing Issues in Gang Cases

their actions that constituted the crimes.  (See the attached examples of typical felony

guilty plea form, Exhibit 1, and misdemeanor guilty plea form, Exhibit 2.)  

In gang cases, it is imperative to obtain a detailed factual basis describing the

gang nature of the crime.  This leaves no room for defendants to later contest the gang‐

related nature of the admitted crimes.   The required elements of criminal street gang

laws are numerous, detailed, and difficult to quickly reduce to writing at the time of a

plea.  A good practice is drafting the factual basis for a criminal street gang crime far

enough in advance of a guilty plea to include all required elements of the crime.  Some

jurisdictions with such crimes use prefabricated forms for guilty pleas.    (See the

attached Exhibit 3.)     

Defendants not pleading guilty face a trial either by jury or a judge (also known

as a court or bench trial).  A jury may convict on some or all of the charges or end in a

stalemate (a “hung” jury), in which they are unable to reach a verdict in all or some of

the charges.  If a jury is unable to reach a unanimous decision, which is required in most

states for a conviction, a mistrial is declared on the case or the unresolved counts if the

jury is able to decide some of the charges.  The prosecution then must decide whether it

wishes to seek a retrial on the case or the hung counts.  If the prosecution requests a

retrial, then the trial court must decide whether there is a reasonable probability of a

future jury reaching a decision on the hung counts in a retrial.  Sometimes prosecutors

move for dismissal of the hung charges in exchange for a greater sentence on the guilty

charges.  This process helps a court avoid a costly retrial and defendants to limit their

sentence exposure.    

A court trial is another option in which the judge alone hears the evidence and

determines the guilt or innocence of a defendant.   Usually the law requires both the

defendant and the prosecution to waive a jury trial for a court trial to occur.  Unlike a

jury trial, a court trial cannot end in a hung verdict because it involves only one fact

finder—the judge.  Sometimes a court trial is used as a way for a defendant to avoid

pleading guilty.    Instead, the court finds the defendant guilty on the basis of the

preliminary hearing transcripts or the available police reports, as long as both sides

agree to the process.  This process is known as a slow plea.  It allows a defendant to

effectively plead guilty yet reserve the right to appeal.   

No matter how the conviction arrives (by plea, slow plea, court trial, or jury

trial), the crimes on which the defendant stands convicted in large part determine the

sentence.  For example, if the defendant is convicted of crimes that carry a mandatory

jail or prison sentence, the court must follow the law.  It is an abuse of discretion for a

court to dismiss a count supported by the evidence just to avoid the imposition of a
Gang Prosecution Manual 

96 Section 5. Sentencing Issues in Gang Cases

sentence that the court considers excessive.   Some charges afford a sentencing option

whereby a judge may strike an otherwise mandatory sentence if the judge puts

sufficient justification on the record for imposing less than the otherwise required

sentence.  Still, other crimes allow a court to fashion a sentence that the judge considers

appropriate for the offense without having to justify the sentence on the record.   

Sentence Options

A court usually has three options at the time of sentencing a street gang offender.  

First, a court can suspend the imposition of a sentence and place the defendant on

probation with a number of conditions.    Jail time is often a condition of probation.  

Probation is a grant of judicial leniency allowing defendants a chance to reform their

conduct and avoid an immediate harsher sentence.  If a defendant fails to comply with

the conditions of probation, a judge can then sentence the defendant to the full jail or

prison value of the crime or reinstate probation with or without additional jail time.   

The second sentencing option is to sentence a defendant but then suspend the

execution of the sentence.    Frequently, suspended sentences are used as a last resort,

giving a recidivist defendant one last chance.  Unlike when the imposition of a sentence

is suspended, in a suspended sentence situation, defendants know exactly what faces

them should they fail on probation.  The sentence is typically higher than it would have

been had sentence been immediately imposed.  In essence, defendants agree to a higher

term in exchange for that one last chance to be successful on probation.

Imposing a sentence is the final option.  Misdemeanors allow courts to sentence

up to one year in jail, depending on the offense.  Felonies result in state prison terms—

sometimes for life or even capital punishment for some forms of murder, in states that

have capital punishment as a sentencing option.   Currently, 38 states and the federal

government have the death penalty as a sentencing option.    When a sentence is

imposed—whatever it is—the punishment should fit the crime.   

Gang members disproportionately commit serious and violent crimes in

comparison to other youthful offenders.   Nowhere is this dynamic more pronounced

than in homicide cases.    Typical forms of special‐circumstance homicide include

intentional murder during a drive‐by shooting; murder occurring during the

commission of serious or violent felonies (the felony murder rule); murder committed

while lying in wait; and in some states, murder committed for the benefit of, in

association with, or at the direction of a criminal street gang.   In states allowing the

death penalty, it is the ultimate penalty in criminal law and requires the ultimate level
Gang Prosecution Manual 

97 Section 5. Sentencing Issues in Gang Cases

of preparation by the prosecution.    No prosecutor should try a capital case without

significant trial experience and training on the laws of homicide and the ponderous

procedural requirements of death penalty cases, such as a specialized jury selection

process, the requirement that all proceedings be on the record, and bifurcated trials for

the guilt phase and the penalty phase.   

The jury must first decide whether the death penalty should be imposed.  

Without the jury’s recommendation, the death penalty cannot be imposed.    In most

states, a judge can overrule a jury’s recommendation of death, but in no state may a

judge impose the death penalty if the jury recommended against it.    In evaluating

whether a defendant deserves death, a jury typically considers factors in mitigation and

aggravation regarding the defendant and the murder, including:

• Circumstances of the crime and the impact of the loss of the victim to

the next of kin.

• Other crimes of violence and felonies committed by the defendant.

• Whether the murder was committed while the defendant was mentally

or emotionally disturbed.

• Whether the victim participated in/consented to the acts that resulted

in his murder.

• Whether the defendant had a reasonable belief that his conduct was

justified.

• Whether the defendant had mental problems or was intoxicated at the

time of the crime.

• The age of the defendant at the time of the crime.

• Whether the defendant had a minor role in the murder.

• Any other extenuating circumstances or evidence of the defendant’s

good character.   

Alternative Sentencing Choices

There are many alternatives to county jail time as a condition of probation for

gang offenders.  These options are sometimes imposed in lieu of or in addition to jail

time.    Common alternative sentencing options include community service, highway

litter removal, graffiti removal, home confinement, live‐in treatment/rehabilitation

programs, and drug or alcohol treatment sessions.    Community service requires a

defendant to work a specified number of hours at a program approved by the court or

the probation department.    For physically fit defendants, litter removal alongside

highways or at parks can likewise be an option.  However, people convicted of violent

crimes are often excluded from participating in such programs.   
Gang Prosecution Manual 

98 Section 5. Sentencing Issues in Gang Cases

Graffiti removal seems like a fitting punishment for many minor gang crimes,

especially vandalism.    Safety, however, is a primary concern because the types of

graffiti being removed are frequently gang‐related.  Care must be taken to keep gang

defendants out of rival gang territory.   

Many defendants would like to avoid county jail time because of overcrowding

or the volatile mix of offenders, from misdemeanants to murderers, in jail awaiting

disposition of their cases.    Home confinement programs allow defendants to remain

confined at home on the condition of checking in with a probation officer periodically

or wearing an electronic monitoring device that alerts home confinement program

supervisors if a defendant wanders too far from a transmitting device.    Home

confinement programs are usually expensive, given the rigorous supervision or

equipment needs.  Another county jail alternative is a “pay to stay” program at a local

city jail.  In these programs, defendants pay the cost of jailing to avoid doing time in the

county jail.  Violent offenders are typically ineligible for pay to stay programs.

Cooperating witnesses in gang cases are many times codefendants to the others

charged in an offense.    Given the severity of gang crimes, however, cooperating

defendants are not normally released upon their agreement to cooperate.   A reduced

sentence may be in order, but usually not a complete dismissal.    As such, it is

imperative to protect cooperating witnesses in custody from their fellow gang

members.  In a large county, the jail system probably has branch jails throughout the

county.  This allows a sheriff’s department to keep cooperating witnesses housed apart

from the other defendants.    It is sometimes better for the prosecuting authorities to

house cooperating witnesses at a city jail if the witness cannot be adequately protected

in the county jail.    At the conclusion of a case in which a cooperating witness is

sentenced to prison, albeit for a shorter period than the other defendants, it is

imperative to ensure the witness’s safety while the witness is in prison.   

Common Gang Case Probation Terms

Probation is often given to gang defendants convicted of their first felony (e.g.,

robbery without a firearm or injury) or misdemeanor offense.  Probation lasts from one

to five years, with three years typical in felonies.  While on probation, defendants face

imposition of their sentences that could result in several years of state prison should

they fail to comply with the requirements of their grants of probation.   

Usual terms and conditions of probation, besides jail time and/or fines, require

defendants to violate no law; comply with all lawful orders of the court, jail, and
Gang Prosecution Manual 

99 Section 5. Sentencing Issues in Gang Cases

probation department; maintain employment and associates as approved by the

probation officer; pay restitution; submit their persons, places, and things to any search

required by a probation officer; and obey any other condition a court finds justified

under the circumstances of the case.  (See the attached Terms and Conditions of Felony

Probation, Exhibit 1, page 5.)

Many jurisdictions have specialized probation terms for criminal street gang

members convicted of a gang‐related crime called gang terms of probation.  In addition

to the normal conditions of probation, gang terms have a number of stringent

restrictions designed to curtail further gang activity.    Following are some of the

restrictions included in gang terms of probation:   

• No presence in a known gang gathering area.

• No possession of spray paint, any etching device, a “slim‐jim,” a dent

puller, a cell phone, or a beeper.

• No clothing associated with or signifying membership in a street gang.

• No appearances at any court proceeding unless a party in the action, a

defendant, or subpoenaed as a witness.  (See the attached Gang Terms

and Conditions of Probation, Exhibit 4.)

Sentencing Hearing

Both the defense and the prosecution have a right to ask for a sentencing hearing

following the conviction of a defendant by jury or when a court has allowed a

defendant to plead guilty with a promise of a lid or a maximum sentence.  Usually, in

felony cases a sentencing report is prepared by the probation department outlining the

defendant’s family and social, employment, and criminal history.    At the sentencing

hearing, the prosecution highlights the aggravated facts in the probation report and

presents additional evidence, if necessary, regarding the serious nature of the offense,

the offender, or both.   

Often, a defendant’s gang affiliation may be relevant to an appropriate sentence.  

This is true even if gang evidence was excluded at trial because the court decided the

probative value of gang evidence was substantially outweighed by its prejudicial

impact.  The nature of the offender, including his gang affiliation, is a relevant factor to

consider at sentencing.  A prosecutor should also check for any violations of jail rules by

the defendant during the pendency of the case.  Such rule violations bode poorly for the

defendant’s prospects to comply with the rules and regulations of the probation

department.    The violations are also common incidents of gang rivalry, which help

present the defendant as being thoroughly gang‐involved.    It is difficult for a gang
Gang Prosecution Manual 

100 Section 5. Sentencing Issues in Gang Cases

member defendant in court to claim reformation while participating in gang fights at

the jail.   

It is common to prepare sentencing briefs for the court delineating the crimes

and their accompanying possible punishments.    Most states allow victims to make

impact statements about how a crime affected their lives before the court imposes

sentence.  Finally, a court determines the amount of any restitution owed and orders the

defendant to pay it.  Prosecutors should always obtain a restitution order even when a

defendant is sent to prison for life.    In most states, a percentage of prison wages is

devoted to the payment of restitution, if the sentencing judge orders it.    

PROBATION HEARINGS

Gang members on probation, especially those with gang terms, are frequent

violators of their probation conditions.  The clearest example of a probation violation is

a defendant’s commission of a new crime.   Absent the commission of a new offense,

common gang member probation violations include failing to report to the probation

officer, wearing gang clothing, associating with fellow gang members, or other gang

term disobedience.

The prosecution must prove the defendant has committed a violation if the

defendant refuses to admit to the violation.  The normal burden of proof in a probation

violation hearing is a mere preponderance of the evidence (more likely than not).  

Probation violations are sometimes referred to as “state prison on the installment plan.”  

Moreover, depending on the severity and frequency of probation violations, many gang

member defendants eventually end up in prison.  Defendants in violation of probation

may have their probation reinstated with additional jail time imposed, may be

sentenced if the imposition of their sentences was suspended, or may have their

sentences imposed if the execution of the sentences was suspended.   

PAROLE CONSIDERATIONS  

It is important for a prosecutor to ensure that the true picture of a gang

defendant and a gang crime is preserved for future use by a parole board should the

defendant become eligible for parole consideration.   The time to gather the necessary
Gang Prosecution Manual 

101 Section 5. Sentencing Issues in Gang Cases

components of the record for future use at a parole hearing is at the time of sentencing.  

A good parole package should include a sentencing transcript of the judge’s comments

about the defendant’s behavior, a probation or sentencing report, autopsy photos and

reports (in murder cases), tapes or transcripts of the defendant’s statements, any crime

scene photos, and documentation of any rules violations while in jail during pendency

of the case.    Any written statements or transcripts of oral statements made by the

victims or the next of kin during the sentencing hearing should likewise be preserved.  

Finally, phone numbers, addresses, and other information that will ensure notification

of the victims or next of kin of any parole consideration hearings should be collected.     

CONCLUSION  

Gang cases range from vandalism to multiple murder, and gang offenders can be

inexperienced youths in their early teens to hard‐core, violent adult gang member

recidivists.    Appropriate sentencing in gang cases requires factoring the aggravating

and mitigating circumstances of the offense and the offender.    The lesser‐involved

young gang associate committing a relatively minor offense may be the perfect

candidate for counseling and minimum court involvement.   

On the other hand, the hard‐core, violent gang member recidivist committing a

new violent offense is a good candidate for the maximum incapacitation through

incarceration.  It is the gang members in between, committing perhaps serious but not

violent crimes, who require the most careful attention regarding appropriate

dispositions of their criminal cases.  A thorough knowledge of gang dynamics, theories

of criminal liability, and specialized antigang laws lends insight into what an

appropriate sentence might be in any given case.    
Gang Prosecution Manual 

102 Section 5. Sentencing Issues in Gang Cases

REFERENCES

“Analysis of Gang‐Related Legislation,” Institute for Intergovernmental Research,

March 1, 2006, www.iir.com/nygc/gang‐legis/analysis.htm.

Boykin v. Alabama, 395 U.S. 238 (1969).  In re Tah, 1 Cal. 3rd 122 (1969).

California Penal Code, Section 667 and for example, Section 190.3.

California Rules of Professional Conduct 5–110.

“Capital Punishment Statistics,” Bureau of Justice Statistics, U.S. Department of Justice,

Washington, DC, March 11, 2006, www.ojp.usdoj.gov.bjs/cp.htm.

Coalition for Juvenile Justice, “Childhood on Trial,”  Washington, DC, 2005.  

Egley, Arlen, Jr., et al. (eds.), The Modern Gang Reader, 3d ed., Roxbury, Los Angeles,

California, 2006.

Roper v. Simons, 543 U.S. 551 (2005).

Thornberry, Terence, “Membership in Youth Gangs and Involvement in Serious and

Violent Offending,” The Modern Gang Reader, 3d ed., Arlen Egley, Jr., et al. (eds.),

Roxbury, Los Angeles, California, 2006.
Gang Prosecution Manual 

103 Exhibit 1
Gang Prosecution Manual 

104 Exhibit 1
Gang Prosecution Manual 

105 Exhibit 1
Gang Prosecution Manual 

106 Exhibit 1
Gang Prosecution Manual 

107 Exhibit 1
Gang Prosecution Manual 

108 Exhibit 1
Gang Prosecution Manual 

109 Exhibit 2
Gang Prosecution Manual 

110 Exhibit 2
Gang Prosecution Manual 

111 Exhibit 2
Gang Prosecution Manual 

112 Exhibit 3
Gang Prosecution Manual 

113 Exhibit 3
Gang Prosecution Manual 

114 Exhibit 4
Gang Prosecution Manual 

115 Exhibit 4
Gang Prosecution Manual 

116 Exhibit 4