Gang Enhancement

In California, gang-related offenses are severe violations. The state punishes involvement in street gangs with harsher prison terms. You will be subject to increased penalties if found criminally liable for participating in or promoting gang offenses. If accused of any gang crime, you need to consult a lawyer knowledgeable about defending clients facing gang enhancement sentencing immediately.

At Leah Legal Criminal Defense Attorney, we boast aggressive defense attorneys who have attained successful results for defendants facing gang-related charges in Los Angeles, California. We know that some individuals who are non-active street gang members can mistakenly be accused of gang-related crimes. We have successfully defended such clients and asserted their rights and can do the same for you. Do not hesitate to contact us to schedule a consultation.

Street Gang Participation Overview

California has scrupulously created laws to curb gang activity and street crime statewide. These laws (PC 186.21 to 186.30) were implemented under the STEP (Street Terrorism Enforcement & Prevention) Act in 1988. PC Sec. 186.22 is at the center of these laws, imposing a strict stance against street gang offenses and enabling prosecutors to charge a person with a misdemeanor or felony and to increase the person’s sentence.

Section (a) of 186.22 PC criminalizes street gang activities in California. For a judge to find you guilty of street gang participation in violation of this law, the prosecuting attorney must demonstrate beyond a doubt three primary elements:

• You were actively participating in a gang.
• You were aware that the affiliates of that gang committed a series of gang violations, and
• You purposely promoted, helped, or furthered the gang members’ felony criminal activity.

Active Participation

Actively participating in criminal gang activity means you engaged in the said activity in a manner not simply passive or just by name. Membership of a gang, however, is usually not explicitly described. It might be challenging for the prosecution to establish whether you are actively involved with a gang. A person might be mistaken for a gang member and be accused of taking part in gang activities merely because they reside in a neighborhood where street gangs are active, they are a relative of a gang member, or their childhood friends are gang members.

Street Gang Definition

A street gang refers to any association, group, or organization of more than two people:

• With an identifying symbol or sign, or with a common name
• Whose main activity is committing offenses
• Which is involved in a series of criminal activities, either in concert or alone

Identifying Symbol or Common Name

All gang members share the identification symbol or a common name. If the criminal street gang uses two or more names, the D.A. can prove this point by establishing at least one commonality among all participants.

Primary Activity

Among the association’s main activities should be committing one or more of the crimes listed under PC 186.22 Section (e). Presently, 33 crimes are listed. They include the following:

• Dissuading a witness
• Murder
• Manslaughter
• Homicide
• Mayhem
• Aggravated mayhem
• Torture
• Kidnapping
• Looting
• Robbery
• Home invasion
• Carjacking
• Assault using a gun
• Assault using a dangerous weapon
• Shooting at an inhabited car or lived-in dwelling
• Rape
• Criminal threats
• Arson
• Burglary
• Grand theft
• Felony extortion
• Firearm possession
• Particular sexual crimes
• Grand theft auto
• Grand theft of a firearm
• Theft and unlawful taking or driving of an auto
• Drug sales, distribution, abuse, manufacturing, and trafficking
• Money laundering
• Firearm dealing
• Discharging a firearm from an auto
• Any felony offense that inflicts substantial bodily harm.

Pattern of Gang Activity

The next section of a gang’s definition is the series of gang activities. A series of gang activities is proven through these points: 

• At least one of the violations was perpetrated after Sept. 1988.
• Perpetrated 2 or several offenses listed under Section (e) of 186.22PC
• These offenses were perpetrated at 2 distinct occasions by 2 or more people
• The offenses were perpetrated less than 3 years apart
• The D.A. proved beyond a reasonable doubt that the violations were associated with gang activity

For example, suppose 3 people form a group called Blaze and get a tattoo of a gun on their arms. This meets the first section of the street gang definition. But if the association or group carries only concealed weapons and has not yet committed any of the offenses listed, it does not meet the definition of a gang, as it has not engaged in a series of gang activities.

Clause of Furthered, Promoted, or Assisted

Per the phrases “assisted,” “furthered,” or “promoted,” the prosecution should prove beyond a reasonable doubt that you committed the offense directly or aided & abetted the listed offense under the state’s enhancement law. Your lawyer can use this clause to defend you.

The clause is only implementable if you perpetrated the offense with other gang members or abetted or aided other members of the gang in committing the crime. You cannot be found criminally liable under this clause if you executed the crime alone or on your own. However, you can be found guilty of a gang crime under a different section.

Under California law, criminal gang participation is deemed a wobbler. That means the district attorney can pursue either felony or misdemeanor charges. If you are found criminally liable for a misdemeanor, you will serve no more than 12 months in custody and a fine of $1,000. And if you are found criminally liable for a felony, you will face 3 years, 2 years, or 16 months in custody and a maximum fine of $10,000.

An instance of participating in a criminal gang is members of a particular gang casing a home before their fellow members burglarize it.

Gang Enhancement

Section (b) of 186.22PC sets forth increased penalties for persons found criminally liable for perpetrating a felony for the advantage of or in collaboration with a street gang. That said, violating Section (b) of 186.22 PC is not a crime in and of itself. Rather, it increases your term for the underlying offense by a maximum of life imprisonment. Prosecuting attorneys often use this law to pursue harsher penalties for persons accused of other felonies. An instance of violating the law in furtherance of an illegal street gang includes an ally of the Bloods carjacking a Crip member.

For a judge to increase your sentence under Section (b) of 186.22 PC, the prosecution must demonstrate the following elements per CALCRIM (California Jury Instruction) 1401:

• You perpetrated or tried to perpetrate an offense at the order of, for the advantage of, or in conjunction with a street gang
• When you committed the offense, you intended to promote, aid, or further criminal gang activities.

You do not need to have been an active member or participant of the street gang when you supposedly committed the offense. Note that the prosecution must first find you criminally liable for the underlying offense for the gang enhancement sentence to apply. That means the prosecution must successfully establish all of the elements making up that offense and the above-listed elements.

Gang Enhancement Consequences

The number of additional years in custody that you will be subject to under gang enhancement will be contingent on the particular facts surrounding the case. For example, if you are found guilty of a violent felony, the judge can impose an additional prison sentence of ten years to add to the prison time of the original felony. Other sentencing enhancements are as follows:

• An addition of no more than five years for committing a serious felony
• An addition of up to four years for committing a generic felonious activity
• An addition of up to fifteen years to life imprisonment for committing one or more of the felony violations mentioned in the language of the law, for example, home invasion robbery.

Based on the felony crime in question, the increased gang-related consequences might add 2 to 25 years onto an underlying prison sentence. A conviction for gang activity within 1,000 ft of a private or public school can also trigger a lengthier prison term.

As mentioned, certain felonies perpetrated to help a gang, such as shooting at an occupied car or inhabited dwelling, drive-by shooting, home invasion robbery, or carjacking that causes death or severe injury, carry even more severe consequences of fifteen years to life if convicted. Remember that if the court imposes a life imprisonment sentence, it will not award you credit towards qualification for parole until you have served no less than fifteen years.

Section (d) of 186.22 PC allows prosecuting attorneys to try a misdemeanor violation as a felony if the crime is perpetrated at the order of a gang or with the purpose or intent of promoting or aiding a gang’s illegal conduct. You might be subject to many years in custody instead of twelve or six months in jail if found guilty under this subsection of the Penal Code.

Defending Against Gang Sentencing Enhancement

Since the increased penalties for California street gang participation are harsh, having a skilled defense attorney is crucial to acquiring the most favorable outcome. Fortunately, various solid defense strategies can prevent a criminal conviction or the addition of an enhanced sentence. The following defenses are particularly convincing to prosecutors, juries, and judges when pursuing charge dismissals and reductions:

You Action Was Not For a Gang’s Benefit

You cannot face sentencing under Section (b) of PC 186.22 unless you perpetrated a violation for a gang’s benefit. This is generally the most effective defense strategy, as it is challenging for the prosecution to demonstrate to the jury what you intended to do.

You Did Not Actively Participate in the Gang

You cannot be convicted under Section (a) of PC 186.22 unless you perpetrate a felony offense and you also actively participate in a street gang. Therefore, for a defense, your lawyer can prove that you are not affiliated with the gang in question, or you are merely a passive gang member, or a member only in name.

The prosecution usually has difficulty proving whether a defendant is an active gang member. Even when you usually spend time with other gang affiliates, it does not constitute active participation. It only shows you had acquaintances or friends in that gang.

No Underlying Offense

You face gang enhancement sentencing per PC 186.22(b) law solely if you perpetrate an offense. That means your whole case if your lawyer proved you did not violate any law. To strengthen your case, your attorney would attempt to persuade the prosecution that it has inadequate evidence to demonstrate guilt beyond a reasonable doubt. They could do this by identifying all the weaknesses in the D.A.’s case, including contradictory eyewitness statements or blurry video footage.

Venue Change

Juries and judges residing in neighborhoods in which police harassment is prevalent and who are often sympathetic to accused persons can be harsh when the allegations involved are related to gang activity. That is because they live scared of gang-related violence. In other words, a jury may be conflicted between fear of criminal gangs and fear of law enforcement.

If you are allegedly a gang member, the jury might be prejudiced against you. Your defense counsel can file a motion requesting a change of the trial venue to be sure the jury is unprejudiced.

You Did Not Know the Gang Was Involved In Unlawful Activity

For a judge to convict you under Section (a) of 186.22 PC, the D.A. must demonstrate that you were aware of the gang’s unlawful activities. If they are unable to prove that, you may not be convicted under Section (a) of 186.22 PC and therefore cannot face sentencing enhancement under Section (b) of 186.22 PC. Proving a person’s knowledge of something can be challenging. Your attorney can argue that you did not know the group you were involved with was a gang involved in criminal activities.

Prosecutor Improperly Pursued Gang Enhancement

Prosecutors have admitted to improperly accusing defendants of gang enhancement with no adequate evidence of the accused being involved with a gang to coerce them into accepting a plea bargain. Be sure to consult an expert defense counsel before agreeing to a plea bargain for an offense because of the fear of being subject to gang enhancement sentencing. Your defense counsel can request a review of all the prosecution’s evidence to establish if the D.A. is bluffing only to lure you into agreeing to a plea bargain.

Bifurcated Trial

Judges and jurors in California have determined that allegations of gang affiliations are highly prejudicial. Therefore, your legal counsel can file a legal motion requesting a bifurcated trial. That means the lawyer is seeking to have your trial held in 2 stages. In this case, you would face prosecution for the alleged felony violation. If convicted, you would face another trial to prove whether you committed the felony violation in question in violation of Section (b) of 186.22 PC. The judge or jury would not give a verdict on the gang enhancement allegations unless they find you guilty in your first trial.

False Accusations

Gang-related offenses often entail false allegations, either by police or other defendants, for being a gang member. In many instances, an individual would be charged despite having little interaction with or connections to the gang in question. Should that happen in your situation, your lawyer may argue the wrongful accusation defense strategy, which can help prevent you from facing more severe penalties.

Gang Testimony Expert

The prosecution in gang enhancement charges has the duty to demonstrate, beyond a reasonable doubt, the elements mentioned above. These factors are demonstrated through the testimony of gang experts. The experts include law enforcement officers who investigate the gangs and testify to their pattern of gang activities. Prior convictions of other gang members are presented before the court as certified copies. The criminal gang expert then testifies that the persons found guilty were part of the same gang as you, the present defender.

Gang experts have primary significance in these cases. Some gang experts are actual experts with in-depth knowledge regarding gangs and their organized crime patterns. Due to their primary authority, your lawyer must be conversant with gang experts. These matters are appropriately raised pre-trial through preliminary hearings.

What to Do If Interrogated About Gang-Related Activity

If a police officer stops and questions you about your belonging to a criminal street gang, you are entitled to stay silent. Whether you have been arrested or not, it is essential not to provide any information that the police may use against you to single you out as a street gang member.

The law enforcement officer might seem friendly and polite, but do not disclose your knowledge of any gang activities without proper guidance from an experienced defense attorney. You want to remain polite and respectful, but explicitly state to law enforcement that you would like a lawyer present during any interrogation. If a law enforcement officer identifies you as an associate or member of a street gang, you may be subject to stiffer consequences if found guilty of an offense, even if it is a misdemeanor.

Gang Enhancement and Related Laws

Various laws are closely related to gang enhancement laws. They include:

• PC 12022.53, the 10-20-life law
• PC 422.75, hate crime penalty enhancement
• PC 12022.7, great bodily injury enhancement
• PC 182, criminal conspiracy

PC 12022.7, Great Bodily Injury Enhancement

According to PC 12022.7, you are subject to the great bodily injury enhancement when you cause substantial injury to a victim while committing a felony offense. The maximum sentence increment is an additional 6 years in prison. Like a gang sentencing enhancement under PC 186.22, you will serve an additional prison term under this law immediately after you finish serving your prison term for the underlying felony.

PC 12022.53, 10-20-Life Law

According to California PC Sec. 12022.53, the 10-20-life statute comes into play when you perpetrate a felony wrongdoing and utilize a firearm in the perpetration of that offense. Like gang enhancement under PC 186.22(b), a judge may impose a life-imprisonment sentence under this statute. The judge would impose a life-in-prison term against you if you severely injured or killed somebody else using a gun while perpetrating a felony.

PC 422.75, Hate Crime Penalty Enhancement

According to California PC 422.75, you face the hate crime penalty enhancement when a court finds that you committed a felony and the felony offense is also considered a hate crime. Unlike in gang enhancement cases, the maximum increase in prison term under this Section is 4 years.

PC Sec. 182, Conspiracy Statutes

PC 182 makes it illegal to commit conspiracy. Conspiracy is when you agree with somebody else to perpetrate a crime, and you or that other person takes an overt action to further that agreement, and you or they commit one or multiple acts. Conspiring to commit a felony is itself a felony, punishable by the consequences of the underlying violation.

If, for example, the jury or judge finds you criminally liable for conspiring to perpetrate armed robbery, you will face the penalties of the crime of armed robbery. If you are guilty of conspiracy to commit more than one felony, you will be subject to the consequences of the crime that carries the severest penalties.

Conspiring to perpetrate a misdemeanor offense is considered a wobbler violation. A misdemeanor or felony conviction will result in imprisonment and substantial fines.

Find a Violent Crimes Defense Counsel Near Me

Being accused of a gang-related crime does not imply you are guilty. The charges could be a mistake, which is all the more reason you need to consult an experienced violent crimes attorney. At Leah Legal Criminal Defense Attorney, we will help you develop a strong defense and present all facts, not only the police officer’s side of the story.

In some cases, we have successfully had gang enhancement charges dropped altogether. When you work with us, we will do everything we can to resolve your case to minimize the disruption to your life. If you are charged in Los Angeles, do not hesitate to contact our office at 213-444-7818 to discuss your options with one of our best attorneys.