California has a large number of criminal gangs. Any crimes connected with these gangs have serious consequences, which can end up affecting you throughout your life. It is recommendable to seek a criminal attorney's help once you are accused of participation in a street gang or involvement in a crime conducted by members of a particular gang. Contact us at the California Criminal Lawyer Group for credible and thorough legal services related to crimes that have a probable gang enhancement sentencing.
Legal Definition of Gang Enhancement in California
Everything to do with gang enhancement crimes in California is captured under California Penal Code 186.22. This statute came into place in 1988 after the Street Terrorism Enforcement and Prevention Act (STEP Act) was enacted. Under the STEP Act, it is a crime for an individual to participate in street gang activity or aid in commissioning a felony conducted by a street gang member.
Conduct Prohibited by PC 186.22(a)
There are three facts or elements of the crime that a prosecutor needs to prove to convict you of participating in the affairs of a street gang. These elements of the crime are as follows:
- You were actively participating in a criminal street gang.
- You had the knowledge that the gang members engaged in a pattern of criminal gang activity.
- You willfully furthered, assisted, or promoted felony criminal activities undertaken by the gang members.
To understand these elements of crime much better, you need to know specific details related to them. These details are as follows.
Definition of a Criminal Street Gang
In California, a criminal street gang is defined as:
- Any group, association, or organization with three or more people
- That engages in criminal activities as part of their primary activities.
- That has an identifying symbol or common name.
- With members who have been engaging or have engaged in criminal gang activities
A criminal street gang can be defined as a group with at least three people who regularly engage in illegal activities and identify themselves with a particular name or symbol.
A defendant is considered an active participant in a gang activity if you participate in the activity in ways that are not merely passive. You can be regarded as an active participant in a criminal gang even when you do not devote your time to it, you are not its leader, and you are not an active member.
For instance, if you admit to the police that you regularly associate with a known street gang and the offense that you commit resembles those that the gang usually participate in, you will be accused of gang enhancement. In such a case, you probably are not an active member of the gang, but your offense's resemblance and your regular association with known gang members would make you an active participant.
Patterns of Criminal Activities
A criminal activity pattern can be defined as engaging in multiple criminal acts in relation to a particular gang. Specifically, California law defines patterns of criminal activity as:
- Committing at least two crimes listed in PC 186.22(e) within three years, and
- Committing the offense on a minimum of two separate two occasions or a minimum of two different people
There are several crimes listed in PC 186.22(e). Some of the are as follows:
- Assault using a deadly weapon
- Manslaughter or homicide
- Manufacture, distribution, or sale of a controlled substance
- Grand theft
- Money laundering
- Grand theft
Assisted, Promoted or Furthered Criminal Gang Activities
Another crucial element that the prosecutor needs to prove is that you intended to assist, promote, or further criminal gang activities. For the prosecutor to achieve this, he or she must demonstrate that you either directly or actively committed a California felony crime or aided in undertaking it.
Besides that, if the prosecutor intends to convict you with the crime of participating in a gang, it must be true that you abetted, aided, or committed a felony with other members of the gang. If you committed the felony alone, you could not be convicted under this statute.
Penalties for Violating PC 186.22(a) – Participating in a Gang
Violating PC 186.22(a) is a wobbler offense in California. This means that an alleged offender can get a felony or misdemeanor charge.
If you are convicted of a misdemeanor, the maximum sentence includes a maximum of one year sentence in county jail and a fine of up to $ 1,000. If you are convicted of a felony, the possible sentence includes sixteen months, two or three years in the State Prison. You might also receive a maximum fine of $10,000.
Sentencing Enhancement Under PC 186.22
PC 186.22(b) sets forth the criminal gang enhancement sentences in California. Street gang enhancement under the STEP Act clearly illustrates that a person should receive an enhanced sentence once convicted of a California crime. This is achieved if the prosecutor can prove that all the elements needed in sentencing enhancement. These elements are as follows:
- You attempted or committed a crime to benefit, associate with, or at the direction of a criminal street gang, and
- While undertaking the crime, you intended to assist, promote, or further the gang’s illegal conduct.
The prosecutor should as well convict you of the underlying offense along with the elements provided above. This proves that you should not necessarily be an active participant in a criminal gang to be prosecuted under this statute.
For instance, if a defendant is involved in a crime and members of a gang who are his close friend end up committing another offense, the defendant will get a gang enhancement due to his association with the gang. Also, the fact that the gang members committed the crime in relation to their friend's (the defendant)criminal conduct makes it a suitable gang enhancement offense.
The extent to which a criminal street gang enhancement would increase your sentencing for a particular crime depends on the following underlying crimes.
According to the STEP Act general rule, you will receive an additional prison term of two, three, or four years as part of your gang enhancement sentence. The additional sentence is served along and consecutively to the penalty that you get for the underlying felony and other additional charges that apply.
Please note, even though there is a specific guideline to the particular penalties that might apply, there are many exceptions that apply.
If the underlying felony you committed in association with participating in a gang is serious, you will face an additional five-year sentence. In California, forty-two crimes are considered as serious felonies. Some of these felonies include:
- Shooting at an occupied car or inhabited dwelling
- Specific drug crimes
- Assault using a deadly weapon
- Criminal threats
- Assault on a peace officer or a firefighter using a firearm
- Assault on a peace officer using a deadly weapon
If the underlying felony you were involved in is a violent felony and was committed in relation to a street gang, you will face an additional ten-year sentence. In California, there are over twenty offenses referred to as violent felonies. Some of these crimes include:
- Any felony that involves the infliction of significant bodily injury on the victim
- California mayhem
- Specific sex crimes
There are particular felonies that, if committed to promote or to assist a gang, you will face a more extended gang sentencing enhancement. Such underlying felonies include:
- Home invasion robbery
- Shooting at an occupied vehicle or inhabited dwelling
- Discharging a firearm from a vehicle commonly referred to as drive-by shooting that led to significant bodily injury
The potential additional sentence would include fifteen years of life in the State prison if you committed the above-stated underlying crimes. If you are convicted of extortion by force or fear or dissuade a witness, you will face an additional seven years in the state prison.
Finally, if your underlying conviction is a felony with potential life imprisonment, you will face a life prison term as your enhanced sentence. In such a case, you will not have the chance to earn credit towards your eligibility to parole until you have served at least fifteen years.
Under PC 186.22(d) misdemeanor crimes can turn to a felony if you committed such a crime with the following intention:
- For the benefit, association with, or direction of a criminal street gang.
- With the specific aim to assist or promote criminal conduct associated with a particular criminal street gang
Therefore, instead of facing the standard misdemeanor sentence that carries a maximum of one year in county jail, you will face one, two, or three years in the State prison.
Please note, that once you get a felony for committing a misdemeanor as a gang enhancement crime, it does not mean that the "new" felony will add as a new sentence enhancement under PC 186.22(b).
Other Considerations that Might Affect your Sentencing
Besides committing a crime that is either a misdemeanor or felony, other considerations can affect your sentencing. These factors are as follows.
Undertaking the Offense in a School Zone
Apart from the above-stated sentencing enhancement calculations, a judge might consider the following factors as a sentencing enhancement:
- Committing the offense in a school zone such as a campus or within one thousand feet or a private or public school
- During school hours or when minors are on the ground
If the offense took place in a school zone, that would be considered aggravating circumstances, and the judge might decide on a sentence on the higher end of a sentencing or penalty range.
Striking in the Interest of Justice
Penal Code 186.22, a judge might decide to strike a gang enhancement under his or her discretion if the plaintiff's attorney is convinced that it is necessary to do so. This usually happens in unusual cases unless your attorney convinces the judge that your case does not suit to have a gang enhancement sentence.
Multiple Gang Enhancement
Under California laws, a single criminal activity can lead to numerous gang enhancements even when it attracts various charges. However, if the alleged offender committed several criminal acts involving several victims and they are separated by distance and time, he or she might face a criminal charge for both activities and the criminal street gang enhancement that applies for both activities.
Legal Defenses for Gang Enhancement
Your criminal attorney should use legal defenses while trying to win your case or reduce your charges. There are several legal defenses that an attorney can use. The choice of legal arguments depends on the nature of the case at hand. Here are a few legal defenses that suit your gang participation or gang enhancement charges.
Fight the Underlying Felony Charges
You cannot receive a criminal street gang enhancement if you do not have any underlying felony. Therefore, if you can manage to fight the underlying felony charges by disapproving of the elements of the felony that you are accused of, you can avoid the gang enhancement that you would possibly face.
Disapprove the Fact that You are an Active Participant in a Street Gang
If your charges for participation in a gang, the conviction cannot be valid unless the prosecutor proves your active participation. This usually works when you are not a full member of a gang. It is challenging to disapprove such allegations, but with a competent attorney, you can be able to find areas on the prosecutor's evidence that you can exploit.
Prove that Your Actions were not Intended to Benefit a Gang
You cannot receive a sentencing enhancement under PC 186.22(b) if the prosecutor cannot prove that your criminal act was intended to benefit a street gang. For instance, if you commit a robbery expecting to get money for your needs without any gang relations, you can be able to use this legal defense. In most cases, such situations occur when an overzealous prosecutor tries to stick a gang enhancement on an alleged offender to extend his or her prison term.
Even when you are convicted of the robbery, you can beat the gang enhancement sentence, which shortens your ultimate verdict.
Prove that the Gang Enhancement is Being Imposed on You Illegally
California gang laws, sentencing law, or firearm law are complicated. Sometimes, a prosecutor might fail to fully understand the relevant statutes and illegally charge or file a case against you. When you are prosecuted for violating California gang laws, your defense attorney should review every aspect of your charges to ensure that your charges are not illegal or unfairly done.
Your Gang Enhancement Sentencing is not Against the Interest of Justice
Even in a situation where a judge decided to impose a gang enhancement with the discretion that it is for the interest of justice, you can still disapprove of this fact. Gang enhancement as an interest of justice is rare, but most legal scholars observe that the sentence is unnecessarily harsh and ineffective.
You can easily fight such considerations by showing your job history, family obligation, and character to persuade the judge to exercise his or her discretion and avoid adding a gang enhancement sentence.
Sometimes you might end up being convicted for a felony based on a false accusation. This usually happens when there is an existing grudge between you and the accuser. In such a situation, the accuser regularly accuses you of committing a particular felony to get back to you. If that is the case, you need to prove to the court that you were falsely accused by showing your location when the alleged crime was being committed. One of the most effective ways to verify your location is through your phone records, credit card information, camera footage, etc.
Since any charges under PC 186.22 involve participation in a gang or doing something to benefit a gang, there are chances of being coerced into committing a crime. In this case, coercion would involve significant threats such as kidnapping a loved one to ensure that you participate in a specific crime to benefit a particular street gang. In such a case, you need to prove that you were in a situation that you would not resist undertaking the criminal action to use this legal defense.
Duress legally defines a situation where someone commits a crime with the reasonable belief that he or she was in immediate danger. Under California laws, you might be excused from any criminal liability that might follow. However, duress does not excuse someone from murder since you cannot kill someone to save your life unless you are doing so in self-defense.
However, if you were committing a felony out of compulsion, and someone dies during the commissioning of the felony, you may not be automatically held liable for the murder.
There are several types of misconduct associated with police during arrest or confinement. For instance, you can be illegally arrested, searched, or have your property seized contrary to the US Fourth Amendment. In such a situation, the court might consider all the evidence collected from your home invalid or dismiss your case. This depends on the extent of police misconduct.
Other Sentence Enhancements Related to California Penal Code 186.22
There are two other common California sentencing enhancements that you can be charged with instead of or in connection with California street gang enhancement. These other sentencing enhancements are as follows.
Sentencing Enhancement Related to Personal Use of a Gun
PC 12022 and 12022.5 set forth the sentencing enhancement for the use of a gun. Under PC 12022, you will face an addition of one year of sentence enhancement if you were armed with a firearm while commissioning a felony. This does not necessarily require you to be personally armed, but if someone else involved in the felony was armed, you can both face the enhancement.
Under PC 12022.5, you can face an additional of three, four, or ten years if you used a gun while commissioning a felony.
In both cases, the prosecutor might choose to argue out that you should receive this sentence enhancement apart from the STEP Act sentence enhancement.
The "10-20-life" is frequently charged with the California gang enhancement sentence. This law is found under PC 12022.53. Under this statute, you can get this sentence enhancement if you:
- Personally used a gun while commissioning a felony. This subjects you to ten years of addition or consecutive sentence apart from the penalty for the underlying felony.
- Personally fired a gun. This subjects you to twenty additional years.
- Personally fired a gun leading to death or significant bodily injury to another person other than your accomplice. This leads to a twenty-five-to life prison sentence.
The felonies that can trigger this kind of sentence enhancement include:
- Robbery, and
This sentence enhancement interacts with PC 186.22 (b) in two ways. Firstly, if you used a gun in commissioning a specific felony to benefit a gang, you may suffer a gun enhancement under both "10-20 life" law and PC 186.22(b).
Secondly, suppose you are a principal for a specific felony committed to benefit a gang and the other principal uses a gun during the commissioning of the felony. In that case, you might get this gang enhancement. This applies even though the law applies to defendants who personally use a firearm when commissioning an underlying felony.
Find A California Criminal Lawyer Group Near Me
It is easy for an alleged offender to end up with a gang enhancement sentencing if found to be associated with a particular street gang. In that case, you should seek help from a professional criminal attorney to try to win your case or reduce your sentence. At California Criminal Lawyer Group, we are equipped with the necessary knowledge and resources to build a strong defense tailored to meet your specific circumstances. Reach out to us at 408-622-0204 for a free consultation.