PENAL CODE SECTION 186.22 STREET GANG ENHANCEMENT
California Penal Code provides for sentencing enhancement when the prosecution shows that your underlying criminal activity was part of a street gang participation. The relevant law, particularly Subsection 186.22(b), is part of the Street Terrorism Enforcement and Prevention Act (STEP).
First, to convict you of an enhancement under Penal Code section 186.22 in general, the prosecutor has to prove the following beyond a reasonable doubt:
- you ‘actively participated’ in a criminal street gang;
- you knew that members of that gang engage (or even engaged in that past) in an arranged or pattern of criminal gang activity; and
- you “willfully promoted, furthered, or assisted” the gang members’ felony-level criminal acts.
“Active Participation” in a gang means taking part in more than a merely passive way – that is more than in name alone. In other words, you would be considered to have actively participated even if you took part only some of the time, even if you were not a leader, or even if you are no longer an active member.
For example, let’s say the police arrest George for an armed robbery (a California felony). The police recognize George from past encounters with known members of a local street gang. In the past, George told the police that he is not a member but also admitted that he sometimes ‘hangs out’ with the gang. In addition, the robbery that George did is actually similar to past robberies committed by members of that street gang.
Because of the past admission that George hung out with gang members, and because of similarities between George’s robbery and the gang’s, George can be considered to have actively participated in the gang.
"Criminal street gang"
Subsection 186.22(f) of the California Penal Code defines a "criminal street gang" as any group of three (3) or more persons,
- with a common name or identifying sign;
- having as one of its primary activities the commission of one of a listed California criminal offenses; and
- whose members, alone or together, engage (or engaged) in a “pattern of criminal gang activity.
“Pattern of criminal activity” can mean simply,
- the commission of two or more crimes from those listed under the law,
- on two or more separate occasions, or by two or more persons,
- within three years of each other,
- with at least one crime committed after September 1988,
- and provided that the prosecution proves that these were gang-related crimes.
The designated crimes include robbery, and drug offenses such as transportation and sale, possession for sale, and manufacturing, drive-by shootings, vandalism, assault with a deadly weapon, and murder.
For example: Let’s say a few boys form a group they call Strikers come up with an identifying logo. They paint their new logo on many spots across their town, but do not engage in any other gang-related activity. The boys committed vandalism. However, if the graffiti is inexpensive and easy to remove, the vandalism will be prosecuted as a felony. The Strikers then will not qualify as a criminal street gang, because only felony vandalism is on the list and counts as criminal gang activity.
"Promoted, furthered, or assisted" gang criminal activity
To prove that you "promoted, furthered, or assisted" felony criminal act by a gang, the prosecutor must prove that you either directly committed a felony under California law, or aided and abetted a felony.
Also, to be convicted of the crime of "participating in a gang" under Penal Code 186.22(a), the prosecutor must show that that you committed, or aided and abetted, a felony with other gang members. In other words, you cannot be convicted under this section of California’s gang enhancement law if you commit a felony on your own.
However, please note that you may still be subject to criminal street gang sentencing enhancement under a different section of this law even if you committed a felony on your own (see below for Section 186.22(b)).
For example: David is a gang member. One day, he commits felony vandalism by himself. It is well known that members of his gang regularly vandalize areas in the community. A prosecutor may charge David with felony vandalism and may also recommend a gang sentencing enhancement. However, David is not guilty of the separate crime of ‘participation in a gang’ for this felonious vandalism because he acted alone and not with other gang members.
PENALTIES FOR THE CRIME OF PARTICIPATING IN A GANG
Under California Penal Code 186.22(a), the prosecutor can choose to try the offense of participation in a gang as either a misdemeanor or a felony.
The maximum sentence for a misdemeanor conviction is one year in county jail, and possibly a fine of up to one thousand dollars. Possible sentences for a felony conviction can be sixteen months, two years, or three years in a California state prison, and possibly a fine of up to ten thousand dollars.
GANG SENTENCTING ENHANCEMENT (Penal Code 186.22(b))
Under Subsection 186.22(b) of the Penal Code, you could receive an enhanced sentence if you are convicted of a crime in California and the prosecutor proves all the required elements stated in the law.
The prosecutor must also prove the following elements in addition to those required for the underlying crime:
- that you committed, or attempted, that crime, for the benefit of a street gang, at the gang’s direction, or in association with it; and
- that you intended to promote, further, or assist some criminal conduct by members of the gang.
Note that for an enhancement, the law does not require that you be an active member or participant in a gang when you actually commit the crime.
For example: Jason, while not a member, has several friends who are members of a well-known gang. One day, Jason and those friends encounter an off-duty police officer. They throw a bottle at the officer, and then begin to beat the officer. Thus, they commit battery on a police officer. The prosecution charges Jason for that crime, Jason is convicted and sentenced. In addition, Jason could lawfully receive a street gang sentencing enhancement if the prosecutor can prove that Jason committed the crime while assisting members of the well-known gang. It does not matter that Jason was not a member of the gang at the time of the crime.
The severity of the enhancement applied to your specific offense depends on the underlying crime of which you are convicted. The general rule is that you will receive an enhanced sentence of an additional prison term of two, three, or four years if you are convicted of a felony, and if the street gang enhancement applies. However, as with most laws, there are exceptions to the general rule. The exceptions in this case usually fall under whether the crime is categorized as a ‘serious felony,’ a ‘violent felony,’ a specific felony, or a misdemeanor.
The additional sentence would be five years if your felony is ruled a ‘serious’ felony. There are over 40 types of felonies that are categorized as California serious felonies. Some examples include shooting at an inhabited dwelling or at an occupied car (Penal Code 246), assault with a deadly weapon by a prison inmate or against a peace officer, and making criminal threats (Penal Code 422).
The additional sentence would be ten years if your felony is ruled a ‘violent’ felony. Again there is a long list of crimes listed under this category. Examples include murder (Penal Code 187), specific sex crimes, and California’s mayhem laws (Penal Code 203 and 205).
You would face an enhancement of fifteen years to life in a California state prison if the underlying felony is a home invasion robbery (Penal Code 213), carjacking (Penal Code 215), a shooting at an inhabited dwelling or occupied car in violation of Penal Code 246, or a drive-by shooting that causes death or great bodily injury (Penal Code 12022.55).
Other specific felonies are extortion (Penal Code 519), and threats to victims and witnesses (Penal Code 136.1). You would face seven years to life if you are convicted of either.
Finally, you would be sentenced to a life term if your underlying conviction is for a felony punishable by life imprisonment. In this case, you would not earn credit towards your California parole eligibility until you have served a minimum of fifteen years.
Penal Code 186.22(d) allows a prosecutor to turn any misdemeanor into a felony, and enhance your sentence, if:
- you commit the misdemeanor for the benefit of, at the direction of, or in association with any criminal street gang; and
- with the specific intent to promote, further, or assist in criminal conduct by gang members.
In such a case, the enhancement can be one, two, or three years in state prison.
For example: Joe is a member of a gang. He displays his gun and points it in the air in front of a rival gang member, and yells out the name of his gang.
A police officer arrests him for violating California’s ‘brandishing a weapon,’ which is a misdemeanor. In Joe’s case, the prosecutor may be able to charge him with a felony instead because he committed the crime to benefit his gang. However, if the prosecutor chooses to do so, then the law does not allow taking this new felony and adding one of the enhancements under Penal Code 186.22(b). This is so because the conversion to a misdemeanor is considered the enhancement.
Other Considerations – Criminal Activity in a School Zone
The STEP Act also includes considerations for criminal activity conducted near a school. Section 186.22(b)(2) instructs that there could be a circumstance in aggravation of the crime if the underlying crime took place within 1,000 feet of a public or private school, during school hours, during school-related programs, or when minors were using the facility. Such consideration could lead a judge to impose a sentence on the higher end.
On the other hand, the law indicates that a judge at his/her discretion may strike a gang enhancement if persuaded that such would be in the ‘interests of justice.’
Multiple gang enhancements
California law generally allows only one sentencing enhancement for a single crime, even if that crime results in multiple charges. However, multiple criminal street gang sentence enhancements may apply if you commit several criminal acts that involve multiple victims and are separated by time and distance.
For example: Johnson, a gang member, and other gang members rob a man in the man’s apartment. Johnson and the gang members then go to another building and rob a second person. The jury decides that Johnson committed both robberies for the benefit of his gang. As such, Johnson may be convicted and may serve time for both robberies, and may receive separate sentencing enhancements for each robbery, because there were different victims and the two crimes were separated by time and distance.
RELATIONSHIP TO OTHER SENTENCING ENHANCEMENTS
Two other California sentencing enhancements may be charged in connection with, or instead of, the criminal street gang sentencing enhancement. These are for personal use of a gun, and California’s ’10-20-life’ law.
Personal use of a gun
Penal Code 12022 would add an additional one year sentence enhancement if you or one of the other actors carried a gun during the commission of a felony. In other words, you could face this enhancement even you were not armed but someone else involved in the felony was.
Penal Code Section 12022.5 allows three possible enhancements: a three (3), four (4), or ten (10) year additional and consecutive sentence if you used a gun while committing the felony.
A prosecutor can argue to apply one of these enhancements instead of the criminal gang sentence enhancement.
California's "10-20-life" law
California's "10-20-life" law (Penal Code 12022.53) indicates that you would be subject to a ten-year sentence, in addition to and consecutive to the penalty for the underlying penalty, if you personally used a gun while committing that felony, and if the felony is one on a list of specific felonies.
Moreover, you would be subject to an additional 20 years if you personally fired a gun; or an additional 25 years to life if you personally fired a gun and caused great bodily injury or death to another person.
The specific felonies that can trigger this law include such crimes as murder, robbery, carjacking, and kidnapping.
The "10-20-life" law interacts with California's gang sentencing enhancement law in two ways. First, if you personally use or discharge a gun during of the specified felonies, then you may receive enhancements under both laws.
Second, you may receive a sentence enhancement under the ’10-20-life’ law if you are a primary actor in one of a specified felonies, you committed for the benefit of the gang, and another primary actor used a gun during the felony. However, the law does not allow for both the gun sentence enhancement and also the gang sentence enhancement if you did not personally use a gun
For example: Dave and Rob, both members of the same gang, commit an armed robbery together to benefit their gang. Rob fires a gun during the robbery. As a result, Rob may receive both the gang sentence enhancement and a ’10-20-life’ firearm enhancement.
Dave may receive a 20-year firearm enhancement, but not a gang sentence enhancement in addition, because Rob was a primary actor but Dave did not personally fire a gun.
Legal defenses against a STEP Act charge can include:
- disputing the underlying felony charge,
- proving that you are not an ‘active participant’ in a gang,
- proving that you did not act for the benefit of the gang, and/or
- that the prosecutor is trying to impose an enhancement illegally.
Disputing the underlying felony
You would not receive a criminal street gang sentence enhancement if you are not convicted of an underlying felony. For a conviction, the prosecution must prove every element of the felony. In turn, a defense attorney may be able to show that the prosecution does not have the necessary evidence to prove every element.
Proving that you are not an "active participant" in a gang
You can be convicted of ‘participation in a gang’ only if the prosecution proves you are an ‘active participant.’ This can be particularly difficult to prove if you are not actually a full member. As such, a criminal defense attorney can find the holes in the prosecutor’s evidence.
You weren't acting "for the benefit of a gang"
The prosecutor must prove that you acted for the benefit of a gang for you to receive a criminal street gang sentence enhancement under Penal Code 186.22(b). Thus, even if you are an active gang member, you would not receive the enhancement if the prosecutor fails to prove you acted for the benefit of a gang when you committed the underlying felony.
For example, if you are a gang member, but committed a robbery because you personally needed money and not to benefit any gang, you may be able to win against a street gang sentence enhancement even if you are convicted of the robbery.
HOW CAN WE HELP
California’s gang and firearms laws are complex. Often, even a well-meaning prosecutor does not accurately understand the relevant law, and may inappropriately file for gang enhancements under Penal Code section 186.22. Negin Yamini will thoroughly investigate the facts of your case to vigorously litigate against ant enhancements charged with your underlying offense.
Actual Case: In People v. G.A. (San Bernardino County Case No. FWV1504559), Mr. A was charged with grand theft auto and a criminal gang enhancement under Penal Code section 186.22. Mr. A had formerly been a member of a recognized street gang, and at the time of his arrest, he had a tattoo that was the signature symbol of the gang. From this limited information, the police and prosecution hastily concluded that Mr. A. had committed the grand theft auto for the benefit of said gang. Negin vigorously litigated against this hasty and unfounded conclusion. Her diligent efforts resulted in a probationary sentence for Mr. A. Given Mr. A’s prior record and the incriminating facts of the underlying crime, this would have been an unlikely disposition without Negin’s relentless and aggressive lawyering.