Gang-related offenses are still a difficult puzzle to solve in most cities in California. Law enforcement officers still face hardships tracking down certain gang groups and members. To try and curb gang crime, California legislators have implemented strict laws. One of these laws is gang enhancement, which may help stop terrorism on the streets, so that street gangs are eliminated or reduced. Also, the legislature has set harsher penalties for offenses committed in connection with street gangs to discourage people from getting involved with these gangs.
Sometimes, though, you can be wrongly accused of involvement with these gangs. If this happens, do not stay quiet and get a wrongful conviction. Speak to a gang crimes criminal defense attorney so he/she can defend your rights and prove your innocence. We at The Los Angeles Criminal Defense Attorney will help you build a reliable defense strategy if you’re charged with any crime that involves gang affiliation in Los Angeles. Also, we will work to help you avoid any sentencing enhancement should you be convicted. All you need to do is call us as soon as you know you are being charged so we can start scrutinizing the prosecution’s evidence early enough and devise our defense on time. In this article, we look at the California gang enhancement law and how it is applied.
Gang Enhancement Overview
In 1988, the California lawmakers implemented the Street Terrorism Enforcement and Prevention (STEP) Act to contain gang violence. Penal Code 186.22 is the law that makes it an offense to take part in a street gang activity. A criminal gang refers to a group of more than three people, having a common identifying mark/symbol and name, and whose core business is engaging in specific criminal activities. PC 186.22 makes gang activity an offense in itself. It also allows a sentence enhancement that adds more prison terms for any crime executed in furthering any criminal gang.
As per PC 186.22(a), only people that are active participants in gangs can be subject to sentencing enhancement. On the other hand, under PC 186.22(b), even people that aren’t active participants in gangs can be subject to sentencing enhancement like in a situation where a person isn’t a member of a gang but committed an offense for the gang’s benefit.
According to the Street Terrorism and Prevention Act, gang members or associates that are found guilty of felony crimes will be punished as per those felonies, and other further punishments due to their involvement in a street gang. Generally, individuals like these face the harshest consequences.
Participating in a Criminal Street Gang
PC 186.22(a) provides the lawful meaning of the offense of taking part in criminal gang activity. As per the STEP Act, the judge will sentence you for this crime only if the prosecution can prove three facts beyond any reasonable doubt. They include:
- You actively participated in a gang
- You were aware the members or associates of that gang were involved in various gang activities
- You willfully helped, promoted, or furthered felonious criminal behavior by the gang members
Definition of Terms and Phrases
For you to have a better understanding of the legal meaning of participating in a criminal street gang under PC 186.22(a), we will explain in detail the various terms used to define this crime.
The gang enhancement statute provides the meaning of “actively participated” as far as criminal street gangs are concerned. When the prosecutor says you actively participated, it means you engaged in criminal gang activity in a manner that’s not only in name or merely passive. It can be assumed that you were an active criminal gang member even when:
- You did not devote a significant part of or all your time to that gang
- You were not the leader of that criminal gang
- You were not an active participant of the criminal gang
A street gang refers to any group or organization of over three individuals which:
- Bears a common identifying symbol or sign, or name
- Has the execution of any of California crimes as its main activity
- Whose members or associates have participated in a series of gang activities, either together or alone
The meaning of a series of gang activity as per gang sentence enhancement statute is highly complicated. However, in simple words, it means that:
- The execution of more than one offense from a specified list of crimes,
- By more than one individual or on more than one distinct occasions
- Within three years of the last occasion
- With, at the minimum, one offense having been executed after September 1988
Even though it might seem odd, the prosecutor doesn’t need to show that these crimes were street gang-related. Offenses that could establish a series of street gang-related activities and therefore deduce that an organization is a street gang are many. They include common crimes like:
- Drive-by shooting
- Numerous drug-crimes, including transportation and sale, manufacturing of drugs, and possession with intent to sell or distribute
- Vandalism (only if it’s a felony)
“Helped, Promoted, or Furthered Gang Activity”
For the prosecution to show that you helped, promoted, or furthered felony criminal behavior of any gang, it must prove beyond doubt that you actively and directly executed a felony offense, or aided and abetted a felonious act.
Additionally, for the judge to find you guilty of taking part in a gang’s criminal activity under PC 186.22(a), the prosecutor has to prove that you either aided and abetted or committed a felony together with the other criminal gang members. Should you execute a felony crime by yourself, you can’t be found guilty under PC 186.22(a).
But, even if it’s true that you acted solo, you can still be convicted under PC 186.22(b), gang sentence enhancement law, which we will discuss later on in this article.
Penalties for Taking Part in Gang Activity
Participating in gang activity under PC 186.22(a) is charged as a wobbler. This means the prosecution may opt to impose felony charges or misdemeanor charges on you. The maximum misdemeanor sentence, if convicted, is a year in jail. Also, you may be subject to a fine that does not exceed $1000.
If you get convicted of a felony, your sentence will be three or two years or sixteen months in prison. Also, you can be fined up to $10,000.
Gang Sentencing Enhancement (186.22b)
PC 186.22(b) describes the actual criminal gang sentence enhancement law. This is how the gang sentence enhancement as per the Street Terrorism and Prevention Act works; if you’re found guilty of committing a crime, you’ll be subject to enhanced sentencing, assuming the prosecution can prove beyond doubt all the elements. These elements include:
- You attempted to commit or committed the offense for a gang’s benefit, in association with a gang, or at the street gang’s order or direction.
- When you executed that crime, you meant to assist, promote, or further criminal behavior by the gang members.
You also have to be punished for the particular underlying offense. This means the prosecution has to prove the facts needed for you to be convicted of that offense too. More importantly, there isn’t any requirement that says you must have actively participated in the street gang during the execution of the criminal activity for you to be convicted.
How much the gang sentence enhancement law increases your prison time for a given crime is based on your specific underlying offense. Let us look at these crimes:
Generally, if you’re sentenced for committing a felony offense, and the gang enhancement law applies, you’ll face an additional and consecutive four, three, or two years of a prison sentence.
Serious Felony Crimes
In case the underlying crime to which PC 186.22(b) gang sentencing enhancement law applies is categorized as a serious felony, the additional sentence will be up to five years in prison. There are more than forty-two types of serious felonies. Here are a few examples:
- PC 422 making criminal threats
- Specific drug crimes
- PC 246, shooting at a lived-in residence or occupied vehicle
- PC 245(a)(2), assaulting a firefighter or peace officer using a firearm
In case the underlying offense to which PC 186.22(b) gang sentencing enhancement law applies is in the class of violent felonies, and it was executed in connection with a criminal gang, you’ll face an additional ten years of prison time. Crimes that are considered violent felonies include, among others:
- PC 187, murder
- PC 203 and PC 205, mayhem
- Specific sex offenses
- Any felony offense whereby the accused inflicts substantial physical injury on a victim
Specific Felony Offenses
PC 186.22(b) outlines the specific felony crimes that, if executed with the purpose to promote or assist a criminal gang, will result in a more extended gang sentence enhancement. In case the underlying criminal offense that you’re found guilty of is:
- Home invasion robbery (PC 213)
- PC 215 carjacking
- PC 246 shooting at a live-in residence or occupied vehicle
- Drive-by shooting (PC 12022.55) leading to significant physical injury/death, then you will be subject to an additional and consecutive fifteen years imprisonment for life.
In case you get convicted of PC 518 extortion accomplished through fear or force, or PC 136.1 dissuading/intimidating a witness, you will face an additional seven years to imprisonment for life.
PC 186.22(d) provides one additional way that gang involvement could increase the sentencing for a given crime. This section of the gang sentencing enhancement law permits the prosecutor to change any misdemeanor to a felony, that is, if you committed that misdemeanor:
- For a gang’s benefit, in association with a gang, or at the gang’s order or direction.
- With the specified intent to further, assist in, or promote criminal behavior by gang associates or members.
This implies that rather than the usual maximum sentence for a misdemeanor crime (one year in jail), you could face three, two, or one year in prison. But if the prosecution chooses to change a misdemeanor to a felony, it isn’t allowed to apply the gang sentence enhancement law as per PC 186.22(b) to that new felony. Courts have acknowledged that this would be a far too severe penalty.
Other Considerations for Sentencing
Apart from the gang sentence enhancement considerations that we provided above, a judge will further look at other facts before imposing his/her sentence. For instance:
Offense Occurred in or Close to a School
A judge will consider whether your underlying crime occurred:
- In or near a school (within 1,000 feet of or on the campus of a private or public school),
- During the learning hours or when learners were present on the school ground.
The fact that the offense took place in or near a school is an aggravating element that a judge might consider when determining how long your sentence will be. This fact could make you receive the maximum possible sentence.
Striking the Criminal Gang Sentencing Increment in the Interest of Justice
As per PC 186.22, a judge may, at his or her discretion, cancel the gang sentence enhancement requirement altogether. This may happen if an experienced defense attorney can convince the jury that striking the enhancement off is in the interest of justice. Striking off gang enhancement ought to occur only with unusual cases. However, with help from a skilled attorney, you might be capable of persuading the court that your situation is just as unique.
Multiple Gang Sentencing Enhancements
Generally, the law only permits you to suffer a single sentence enhancement for one criminal activity even if your criminal act leads to numerous charges. But if it’s proven that you committed several criminal activities that involve several victims and they are separated by distance or time, then you may face charges for each of the acts. The street gang enhancement law may also apply to each of the acts.
How PC 186.22 Relates to Other Sentence Enhancements
We have two other sentence enhancements that might be charged lieu of or in relation to the street gang sentence enhancement. They include sentence increment for individual gun use and ten-twenty-life (use a gun and you are done) law.
Personal Gun Use
PC 12022 and PC 12022.5 describe the sentence enhancements for personal gun use. PC 12022.5 adds an extra one-year sentence increment if any person is armed in the execution of a felonious act. This means even if you’re not personally armed, but the person you’re committing the felony with is, both you and that person could be subject to this enhancement. The personal gun use law adds extra ten, four, or three years of prison time to be served consecutively if you use a firearm during the execution of a felony crime.
Ten-Twenty-Life Law (Use a Gun, and You’re Done Law)
The ‘’use a gun and you’re done’’ sentencing enhancement frequently gets imposed in relation to gang sentencing enhancements. The “ten-twenty-life” rules and regulations are set forth under PC 12022.53. As per this sentence enhancement law:
- Personal use of a gun in the execution of a specific felony will result in an additional and consecutive ten years in prison to add to the sentence of your underlying offense.
- If you fire a gun during the execution of any specific felony, you will face an additional and consecutive twenty years in prison.
- If you fire a firearm and cause death or substantial bodily injury to someone else that’s not your accomplice, you will face an additional and consecutive twenty-five years to imprisonment for life.
The specific felony crimes that can lead to a judge applying the ‘use a gun and you are done’ law include robbery, carjacking, kidnapping, and murder. The ‘use a gun, and you’re done’ statute interacts with PC 186.22(b) gang enhancement in two ways:
- Firstly, if you discharge or otherwise use a firearm during the commission of a specified felony, and you execute the crime for a gang’s benefit, you may face a sentence increment under PC 186.22(b) and PC 12022.53.
- Secondly, if you participated in a specified felony that was executed for a gang’s benefit and another participant to the crime (other than you) discharges or uses a firearm in the commission of the felony, you’ll face a sentence enhancement under PC 12022.53. Though, PC 12022.53 usually applies to a defendant that personally used or discharged a firearm.
However, you might not face sentencing enhancement under both PC 12022.53 and PC 186.22(b) if you didn’t personally discharge or use a gun. This may sound confusing to a layman like you, hence the reason why you should consult with an expert criminal defense lawyer who deeply understands both gang laws and gun laws.
Firearm laws are complicated, so are gang sentencing enhancement laws. An attorney that has mastered both of these laws will immediately recognize when the prosecutor is trying to subject you to an unlawful sentencing enhancement.
Legal Defenses Your Attorney Can Argue in Court
Your attorney can argue different defenses to contest any STEP Act charge against you. That is, either PC 186.22(a) charges of participation in a gang or PC 186.22(b) gang enhancement. These defenses include:
Fighting Your Underlying Felony Charge
If you’re not found guilty of the underlying crime you have been accused of, you cannot face a street gang sentence enhancement under PC 186.22(b). In most cases, the prosecution might not have enough proof to substantiate all the elements of the crime of which you’re accused.
Showing that You Aren’t an Active Gang Participant
If you’re facing charges of participating in a street gang under PC 186.22(a), you can’t be guilty unless the prosecution can show that you’re an active gang participant. Particularly if you’re not a full gang member, it can be challenging for the prosecutor to establish that you actively participated in it. An expert defense attorney can help uncover the weakness in the prosecution’s evidence that shows you actively took part in a street gang’s activity.
You Were Not Acting for Any Gang’s Benefit
You can’t also face gang sentencing enhancement if the prosecution can’t show that you executed a crime for a gang’s benefit. This is the case even if you’re an active gang member. For instance, a member of a gang may commit the crime of robbery only to try and get themselves and their family money. It could be that the act of the gang member didn’t have anything to do with the whole gang. However, the prosecutor might try to impose the gang sentencing enhancement on the member just to paint a bad picture of him/her during the trial and have him/her face an extended sentence.
Even if the member is found guilty of the crime of robbery, he/she should be capable of beating the street gang enhancement requirement with help from a skilled gang crimes lawyer, which will make his/her ultimate sentence to be shorter.
The Prosecution is Subjecting You to the Enhancement Illegally
It’s worth repeating that sentencing laws, gang laws, and gun laws are complicated. Sometimes, even the prosecution might not understand in detail the relevant provisions, and they might file illegal or wrongful charges against a defendant.
When the prosecutor charges you with a violation of gang laws, your defense attorney must carefully review each element of this charge to be sure you aren’t being charged unjustly or illegally.
Imposing Gang Enhancement Won’t Be for The Interest of Justice
The jury may, after all, decide to apply the gang enhancement under PC 186.22(b). However, note that it is still at the discretion of the judge to strike off the enhancement in unique cases, that is, in case the interest of justice calls for it.
Even though this occurs rarely, several observers and legal scholars recognize that gang enhancement law is unnecessarily severe and utterly ineffective and unjust.
Providing info about your family contributions and obligations, job history, and character may help convince the court to strike off the enhancement.
Find a Gang Enhancement Criminal Defense Attorney Near Me
As we mentioned earlier, gang and gun laws are very complicated for a layperson to comprehend. And even though this is true, you won’t be spared if you are caught committing a gang-related offense. You will be punished to the full extent of the law. This means facing the most severe penalties. Therefore, if you are facing any charges of a gang-related crime, you should talk to a gang crime criminal defense lawyer who will help you to interpret the law and advise on what steps to take. At The Los Angeles Criminal Defense Attorney, we have long experience in helping clients facing charges of gang affiliation. Don’t risk your future by remaining silent and agreeing to go down. Call us now at 310-564-2605 for a cost-free consultation and case evaluation. We are happy to assist you.