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WPIC 300.36 Aggravating Circumstance—Criminal Street Gang [RCW 9.94A.535(3)(aa)])

11A WAPRAC WPIC 300.36Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 300.36 (5th Ed)

Washington Practice Series TM

Washington Pattern Jury Instructions--Criminal

January 2024 Update

Washington State Supreme Court Committee on Jury Instructions

Part XVI. Exceptional Sentences—Aggravating Circumstances

WPIC CHAPTER 300. Exceptional Sentences—Aggravating Circumstances

WPIC 300.36 Aggravating Circumstance—Criminal Street Gang [RCW 9.94A.535(3)(aa)])

“Criminal street gang” means any ongoing organization, association, or group of three or more persons, whether formal or informal, having a common name or common identifying sign or symbol, having as one of its primary activities the commission of criminal acts, and whose members or associates individually or collectively engage in or have engaged in a pattern of criminal street gang activity. [This definition does not apply to [employees engaged in concerted activities for their mutual aid and protection] [or] [the activities of labor and bona fide nonprofit organizations or their members or agents].]

[“Criminal street gang member or associate” means any person who actively participates in any criminal street gang and who intentionally promotes, furthers, or assists in any criminal act by the criminal street gang.]

NOTE ON USE

For the aggravating circumstance involving criminal street gangs, use the above instruction, as applicable, to supplement the primary statement of this aggravating circumstance, which appears in WPIC 300.02 (Aggravating Circumstance Procedure—Factors Alleged—Unitary Trial) or WPIC 300.06 (Aggravating Circumstance Procedure—Factors Alleged—Bifurcated Trial or Stand-Alone Sentencing Proceeding).

Use bracketed language as applicable.

COMMENT

RCW 9.94A.535(3)(aa); RCW 9.94A.030. The first statute sets forth the aggravating circumstance for criminal gang activities; the second statute defines the terms “criminal street gang” and “criminal street gang member.”

This aggravating circumstance was added to the Sentencing Reform Act in 2008. Laws of 2008, Chapter 276, § 303 (effective June 12, 2008).

For this aggravating circumstance to be applicable, the State must prove that there is a nexus between the crime charged and the defendant's actual gang-related motivations. This is similar to the analysis required for the aggravating circumstance under RCW 9.94A.535(3)(s), that the defendant committed the crime to advance his position in the hierarchy of an organization. State v. Moreno, 173 Wn.App. 479, 496, 294 P.3d 812 (2013). For a discussion of cases construing that circumstance, see Comment to WPIC 300.28 (Aggravating Circumstance—Crime Committed to Obtain or Advance Position in Group [RCW 9.94A.535(3)(s)]).

The statutory presumption is that this aggravating circumstance will be presented to the jury during the trial of the alleged crime. RCW 9.94A.537(4).

[Current as of April 2019.]

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