Any crimes committed in connection with California gangs have significant implications that could haunt you for the rest of your life. It is recommended that you seek the assistance of a criminal defense attorney if you have been accused of being a member of a criminal gang or participating in a crime committed by members of a particular gang.
Get in touch with the Los Angeles Criminal Attorney if you need professional legal services for offenses that could result in gang enhancement sentences.
The California Law On Gang Enhancement
Everything related to gang-enhanced offenses in California is covered by California PC 186.22. The statute went into effect in 1988, following the Street Terrorism Enforcement and Prevention Act (STEP) passage. A person who engages in street gang activities or helps a street gang member commit a crime is guilty of violating the STEP Act.
Acts Prohibited By Penal Code 186.22 (a)
A prosecutor must establish three facts, or elements of the offense, to find you guilty of participating in gang activities. The following are elements of this crime:
- You were an active member of a criminal street gang.
- You were aware of the pattern of illegal activities the members of the gang engaged in.
- You knowingly assisted, promoted, or furthered the gang members' criminal acts.
To understand the elements of this offense better, you must be conversant with the specific details about them. They include:
Understanding What a Criminal Street Gang Means
A criminal street gang under California law is described as:
- Any organization, group, or association with three or even more members.
- That take part in criminal activity as one of their main activities.
- That bears a common name or identifiable symbol.
- With participants who are currently or have previously been involved in illegal gang activity.
A criminal street gang is described as a group of at least 3 individuals who regularly participate in unlawful activities and distinguish themselves using a specific symbol or name.
An accused person is regarded as an active player in gang activity if they engage in activities that aren't solely passive. You could be considered an active member of a street gang even if you don't dedicate your time to committing the acts, are not the leader, and aren't an active player.
For example, if you confess to the authorities that you often interact with a recognized street gang and the crime you perpetrate compared to those that the gang most often commits, you'll face gang enhancement charges. In this situation, likely, you're not a current gang member, but the similarities between your crime and recognized street gang members, as well as your frequent contact with them, would indicate that you are.
Patterns of Criminal Activity
A pattern of criminal activity is defined as committing multiple illegal activities in connection with a specific gang. California law denotes patterns of illegal activity as follows:
- Perpetrating at least 2 of the crimes outlined under Penal Code 186.22(e) in the past three years.
- Perpetrating the crime on at least two different occasions or with at least two other individuals.
Penal Code 186.22 (e) lists a number of these offenses. Some examples include:
- Robbery under a PC 211.
- Assault with a lethal weapon Under PC 245(a)(i).
- Murder under PC 187.
- Manufacturing, distributing, or selling a prohibited substance.
- Grand theft under PC 487.
- Carjacking under PC 215.
- Mayhem under PC 205.
- Rape under PC 261.
- Burglary under PC 459.
- Money laundering.
- Arson under PC 451.
- Aided, promoted, or facilitated criminal gang activity.
Another critical element that the prosecuting attorney must establish is that you intend to aid, promote, or facilitate criminal gang activity. To do so, the prosecution must show that you directly or indirectly perpetrated a California criminal offense or assisted in its commission.
In addition, it has to be proven that you conspired with, helped, or engaged in criminal activity with other gang members if the prosecution wants to prosecute you for participating. You could not be found guilty under this penal code if you perpetrated the criminal act alone.
Penalties for Violations of Penal Code 186.22(a) - Participation in Gang Activity
Violation of California Penal Code 186.22(a) is considered a wobbler offense. This implies that a purported offender could be accused of committing a misdemeanor or a felony.
If you're found guilty of a misdemeanor charge, you face a maximum sentence of a year in jail and fines amounting to 1,000 dollars. If found guilty of a felony offense, you could receive a sentence of 16 months, 2 years, or 3 years in state prison. You could also face a $10,000 fine.
Sentence Enhancement Under Penal Code 186.22
California's criminal gang enhancement sentences are outlined under Penal Code 186.22(b). The STEP Act's street gang enhancement plainly shows that a defendant should get an enhancement of their sentence after being found guilty of a California gang-related offense.
This is accomplished if the prosecution can demonstrate that all the elements required for sentencing enhancement are present. They include:
- You tried to or perpetrated an offense with the intent of benefiting, associating with, or directing a criminal gang.
- You committed the crime with the purpose of aiding, supporting, or furthering the gang's criminal activity.
In addition to the elements listed above, the prosecution should prosecute you for the underlying crime. This shows that you do not have to be an active member of a street gang to be put on trial under this statutory provision.
For example, suppose an accused person is accused of committing a crime, and close friends of his gang members go on to perpetrate another criminal act. In that case, the accused will receive a gang enhancement because of his affiliation with the criminal gang. Furthermore, because the gang members perpetrated the criminal act in connection to their acquaintances (the accused) illegal conduct, it qualifies as a gang enhancement crime.
The following underpinning offenses determine how much a criminal gang enhancement would lengthen your sentence for a particular offense.
You will be sentenced to a further two, 3, or 4 years of imprisonment as a part of a gang enhancement under the broad guidelines of the California Street Terrorism Enforcement and Prevention Act. The extra sentence is completed concurrently with the punishment you receive for the original felony and any other offenses that may also be applicable. There are several exceptions to this rule, even though there is a clear outline of the set penalties that may apply.
Serious Felony Charges
If the underpinning criminal you perpetrated in connection with your involvement in a gang was severe, you could receive an extra 5 years in prison. There are 42 offenses classified as major felonies in California. Among these crimes are:
- Firing at an occupied dwelling or vehicle.
- Assault with a dangerous weapon.
- Certain drug crimes.
- Armed assault on a police officer or any other peace officer.
- Criminal threats.
- Assault with a deadly weapon on a peace officer.
You would receive a further 10 years in prison if the prior felony in which you participated were violent and related to a criminal gang. There are more than twenty crimes classified as violent crimes in California. Among these offenses are:
- Causing mayhem.
- Any crime that results in the victim suffering a significant amount of bodily harm.
- Certain sex crimes.
You could be subject to a more extended gang sentencing enhancement when you commit certain offenses to support or promote a gang. These basic felonies consist of the following:
- Home invasion and robbery.
- Firing a gun at an occupied building or car.
- Firing a gun from a moving car, often known as a drive-by shooting, causing severe injuries.
If you perpetrated the underlying offenses listed above, you could face an additional 15 years in prison. You could receive an extra 7 years in prison when you have been found guilty of intimidating a witness or using force or intimidation to extort the purported witness.
Finally, if your initial conviction was a felony that carries a potential life sentence, you will be sentenced to life in prison as the enhanced sentence. You will have the opportunity to receive credit for your chance of parole, in this case, once you've completed a minimum of 15 years.
A misdemeanor violation can become a felony as per Penal Code 186.22(d) if it was perpetrated with the intent listed below:
- In support of, in affiliation with, or operating under the control of a street gang.
- Having the sole intent of supporting or promoting criminal activity connected to a particular street gang.
You will consequently find yourself facing one, 2, or 3 years in prison rather than the typical misdemeanor punishment, which includes a maximum sentence of one year in jail.
Remember that just because you were charged with a felony for perpetrating a misdemeanor offense as a gang enhancement charge does not indicate that the "additional" felony would lead to an additional enhancement under Penal Code 186.22. (b).
Other Factors That Could Affect Your Conviction
Aside from committing a felony or misdemeanor offense, additional factors can influence your sentence. These elements include the following:
Committing the Crime on a School Property
Aside from the initial sentencing enhancement computations, a judge would also consider the following elements as sentence enhancements:
- Committing the crime on school property, such as a college or campus.
- Within a thousand feet of a public or a private school.
- During class hours.
- When a minor is present on the school property.
If the crime occurred on school property, this would be deemed aggravating factors, and the court would choose to punish at the harshest end of the possible range.
According to California law, even if a single criminal offense results in multiple charges, it can result in several gang enhancements. However, suppose the accused perpetrated multiple crimes involving different victims separated by time and distance. In that case, they could face charges for both crimes and a criminal gang enhancement related to both offenses.
Striking for Justice
California PC 186.22 allows judges to strike gang enhancements at their discretion if they are convinced that doing so is necessary by the plaintiff's lawyer. This is usually the case in unusual circumstances unless your lawyer can persuade the court that your case doesn't warrant a gang enhancement term.
Legal Defenses for a Gang Enhancement Crime
While attempting to dismiss or lessen your charges, your criminal defense attorney should apply legal defenses. A lawyer can use a variety of legal arguments. The arguments used are determined by the facts of the case. Below are a few legal arguments that could apply to your gang involvement or gang enhancement case.
Disapprove of Your Participation In the Street Gang
If you are accused of belonging to a criminal gang, the prosecution must show that you were actively involved in the case to stand. This argument typically works when you're not a gang member. It is difficult to disprove such claims. However, with the help of an experienced attorney, you can spot flaws in the prosecution's case that you might exploit.
Defend Against the Underlying Felony Counts
You cannot get a criminal gang enhancement if you don't have an underlying offense. Therefore, you could avoid the possibility of gang enhancement if you can successfully contest the underlying criminal charges by objecting to the elements of the offense for which you are charged.
Demonstrate that Your Action Was Not Intended to Benefit a Gang
If the prosecution cannot show that your illegal act was meant to assist a street gang, then PC 186.22 (sentencing enhancement provisions) will not apply to you. For example, if you get involved in a robbery aiming to gain money for your needs and have no gang ties, you could be allowed to use this legal argument.
In most situations, these cases arise when an overaggressive prosecutor attempts to impose gang enhancement charges on an accused person to prolong their term of imprisonment. Even if you are found guilty of the crime, you are still eligible to beat the enhancement penalty, which reduces your overall sentence.
Demonstrate That Gang Enhancement Is Being Forced Upon You Illegally
California sentencing rules, gang laws, and firearm regulations are all difficult to understand. The prosecution would sometimes need to accurately grasp the applicable statutes and file or open a lawsuit against you illegally. When you're charged with breaching California gang laws, your attorney should go over every detail of the charges to verify that they are not unfairly set or illegal.
The Gang Enhancement Sentence Is Not Against The Justice's Interests
Even if the court decides to impose a gang enhancement sentence with the decision that it's in the best interest of justice, you could still object to this fact. Although gang enhancement in the interest of justice is uncommon, most legal experts agree that the punishment is overly ineffective and harsh.
You could easily overcome such factors by proving your career history, family obligations, and character to convince the court to use their discretion not to add a gang enhancement term.
On rare occasions, you could be found guilty of a crime based on false accusations. This usually occurs when the defendant and the other party have an existing grudge or issue. In such a case, the accuser accuses you of perpetrating a particular act to take revenge against you.
If so, you must provide evidence to the court showing where you had been when the purported offense was committed and convince the judge that you have been wrongfully accused. Your call logs, credit card details, and surveillance video are among the most reliable ways to confirm your whereabouts.
The possibility of being pressured into engaging in a crime exists because any charges brought under Penal Code 186.22 entail involvement in a criminal gang or performing an act to their advantage. Coercion in this situation would entail serious threats, like kidnapping a family member, to compel you to commit a particular crime to benefit a specific gang.
For this legal argument to be compelling, you must demonstrate that you were placed in a position where you could not refuse to perpetrate the crime.
Legally, being under duress is when a person commits a crime while having a justifiable fear for their safety. You might be exempt from any potential criminal responsibility under California law.
However, being under duress doesn't exempt a person from being a murderer. This is because killing an individual to rescue your life is not legal except if you act in self-defense. You might not be immediately held accountable for the murder when you were forced into performing the crime, and someone died due to that act.
Misconduct by Law Enforcement Officers
There are various types of misconduct committed by police during an arrest or detention. For example, you could be illegally apprehended, searched without a warrant, or have your properties confiscated in violation of the Fourth Amendment to the United States Constitution.
In such a case, the court may rule that any evidence gathered from your property is invalid and dismiss the case. This is determined by the severity of the officer's misconduct.
Other Penalty Enhancements Associated with California PC 186.22
There are 2 other standard sentencing enhancements that a defendant could be convicted of instead or in addition to California gang enhancement. The following are the additional sentence enhancements:
Sentence Enhancement Relating to Personal Firearm Use
California PC 12022 and PC 12022.5 outline the sentencing enhancement for firearm use. If you used a gun while committing a crime, you could face an additional year of sentencing enhancement under California PC 12022.
This doesn't necessarily require the accused to be armed. However, if another person participating in the crime were armed, the defendant and the armed person would receive the sentence enhancement.
If you had a firearm while committing a felony, you could face an additional 3, 4, or 10 years behind bars under California PC 12022.5. In both situations, the prosecutor may seek to claim that you should get a sentence enhancement in addition to the STEP Act sentencing enhancement.
The "10-20-Life" Rule
This law is usually charged alongside a California street gang enhancement sentence. The statute can be found in PC 12022.53. This sentence enhancement is applicable under California law if the defendant:
- Personally discharged a firearm, resulting in the demise or serious bodily harm of an individual other than your crime partner. This results in a 25-to-life prison term.
- Personally used a firearm to commit a felony. This carries an additional ten-year term or concurrent sentence in addition to the penalties for the underlying crime.
- Personally fired a firearm. This adds twenty years to your sentence.
The following felonies can result in this type of sentencing enhancement:
The sentencing enhancement has two interactions with California PC 186.22b. If you were armed when committing a specific crime to benefit a street gang, you could face a gun sentence enhancement according to the "10-20 life" rule and California PC 186.22b.
Second, imagine you're a principal in charge of a specific crime perpetrated to benefit a street gang, and the other principal discharges a firearm during the commission of the crime. In this case, you would receive a gang sentence enhancement. This is applicable even if the law only relates to offenders who personally discharge a firearm while committing an underlying crime.
Find a Criminal Lawyer Near Me
If an alleged perpetrator is linked with a particular street gang, they could face gang sentence enhancements. In this situation, you should consult with a skilled criminal defense attorney to prevail in your lawsuit or lower your sentence.
At the Los Angeles Criminal Attorney, we have the skills and tools to build a solid defense suited to your specific needs. Call us today at 424-333-0943 to speak with our attorneys.