California, United States of America
The following excerpt is from People v. Amezcua, F064904 (Cal. App. 2014):
Bender, supra, 27 Cal.2d at p. 180) while "knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity" is an element of the gang participation offense (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130 (Rodriguez); accord, 186.22, subd. (a)). Thus, the use of CALCRIM No. 250 was inappropriate. The court compounded its mistake by concurrently providing CALCRIM No. 251 on the union of act and specific intent and/or mental state for count 2. As noted, CALCRIM No. 250 and CALCRIM No. 251 are mutually exclusive instructions. Instead, the court should have given solely CALCRIM No. 251 for counts 1 and 2.
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