The rise in gang violence incidents in California resulted in the passage of the Street Terrorism Enforcement and Prevention Act (STEP Act). PEN 186.22 is the primary law that criminalizes gang activity. Engaging in criminal gang activity is a separate count, while committing criminality to benefit a street gang results in a penalty enhancement for the baseline crime. Any conviction for a gang-related offense can have grave consequences.
Therefore, if you face allegations or charges for being a gang participant or engaging in an offense committed by gang members, you need the help of a defense attorney. At the Pasadena Criminal Attorney, we can contest the charges for a reduced sentence or case dismissal.
California Gang Enhancement Elements
PEN 186.22 is the statute that defines gang enhancement. The statute came as a result of STEP enactment in 1988, which criminalized participation in gang activities or assisting a criminal gang to commit a felony.
Per Penal Code 186.22(a), the District Attorney (DA) must demonstrate three crucial elements or facts of the case to secure a guilty verdict. These elements are:
- You actively engaged or participated in criminal gang undertakings
- You knew the gang associates are involved in crime
- You deliberately aided, promoted, or furthered these illegal activities committed by the criminal gang
For a better understanding of gang enhancement, we at the Pasadena Criminal Attorney have highlighted the following details:.
Actively Participated
Per Penal Code 186.22(a), active contribution or participation refers to engaging in criminal gang activity impassively or not only by name. The DA does not have to show that you were the leader of the street gang or were entirely devoted to the group to be guilty. Besides, you do not have to dedicate your time and resources to the activities of the group. What the prosecutor needs to demonstrate is that your participation was not simply passive.
For example, you have a firearm and decide to rob a convenience outlet. After the robbery, the police manage to arrest you and charge you with a felony robbery offense. During investigations, the police also realize that you hang out with known local gang members. You admit that the group members are your friends, but you do not belong to the group.
Furthermore, robbing the store is a prevalent felony associated with gangs. Because of your links with the members of unlawful groups and your underlying crime’s nature, the prosecutor will deem you an active accomplice in a gang. If the court finds you guilty of the California robbery, you will face gang enhancement penalties.
Street Gang Member
A gang or an unlawful group means at least three individuals with a common name, symbol, or mark, and crime is among their main activities. Besides, the members of the unlawful group are to commit a sequence or pattern of crimes. A crime pattern under gang enhancement statutes means:
- Engaging in a minimum of two of the criminal activities prescribed under gang enhancement statutes
- There have been no less than two separate incidents involving no less than two gang members
- The crimes have been committed over 36 months
- The offense was perpetrated after the STEP passage
When proving this element, the law does not require the DA to confirm that the crime was gang-related. The offenses that demonstrate a pattern or sequence of violations by a criminal gang include:
- Murder
- Robbery
- Drug offenses
- Assault with a lethal weapon
- Drive by shooting
- Felony vandalism
- Arson
- Burglary
- Rape
- Looting
- Mayhem
- Carjacking
- Money laundering
Aided or Furthered Street Gang Activities
The DA should show that you assisted or promoted the activities of an unlawful group for you to face gang enhancement. They do this by proving your open or active involvement in committing a felony or that you facilitated no less than two gang members to accomplish the crime. You would not face gang enhancement if you participated in the crime for selfish gains and if the crime was not to promote or assist the criminal gang’s activities.
Crimes that Attract Gang Enhancement Consequences
A gang associate or the whole gang can perpetrate ordinary crimes for the benefit of the unlawful group. When you do this, you risk harsher penalties than a regular individual who commits the same offense but is not related to the criminal group. California crimes that lead to gang enhancement are:
- California Assault
Per PC 240, assault happens when you willfully hurt someone else. Typically, the DA files the crime as a misdemeanor. Nevertheless, the prosecutor files the crime as a felony in aggravated assault when you are a criminal gang associate or engage in the crime to promote an unlawful group. Assault commonly happens for the criminal gang if it is done to seek revenge.
Aggravated assault, as an illegal group-related crime, occurs when:
- You utilize a lethal weapon to accomplish assault
- You accomplish the assault using a gun
- The assault results in substantial bodily injuries
- You commit assault using a caustic chemical
- You utilize a deadly weapon to achieve assault against a school worker
Also, you risk gang enhancement when your assault on a peace officer is done in reprisal or to seek revenge for a criminal gang. If these circumstances exist in your case, they will enhance your penalties. However, a knowledgeable attorney can help you contest the allegations if the prosecutor is unable to prove beyond moral certainty that:
- You accomplished the crime naturally by applying physical force against someone else
- The application of force was done to promote or benefit an unlawful group
- At the time of using physical force, you were aware of your actions
If the DA cannot satisfy the evidentiary standard in criminal cases when proving these facts, your attorney can contest their arguments for a charge reduction or dismissal.
- California Robbery
Another criminality that forms a sequence for criminal gang activities is robbery. Per PEN 211, a crime occurs when you illegally take someone else’s belongings or property and retain possession against the person’s will or without their consent. When an ordinary party commits robbery, the crime is a felony and attracts a prison sentence of at most nine years when found guilty.
Nevertheless, when a gang associate perpetrates the offense, a conviction attracts harsher penalties under gang enhancement statutes.
The prosecutor secures a conviction if they can demonstrate that:
- You are a member of a gang
- You took an individual’s property without permission
- You utilized physical violence, force, or intimidation to take the property
- You planned on depriving the property owner of its use or benefit and instead furthering or benefiting gang activities with it.
Typically, the case’s circumstances determine the type of charge you will attract. A conviction will result in penalties for the robbery and gang enhancement.
- Murder or Homicide
Gangs also commit murder or homicide to seek revenge or retaliate. Any time you kill a person to benefit or promote a gang, a conviction will result in gang enhancement penalties.
- Firing at an Inhabited House or Vehicle
It is common for gangs to shoot in occupied houses or vehicles. The crime can be committed as a show of power, to seek revenge, or to send a message. Ordinarily, the crime is a felony. However, when it is done in relation to gang activities, you risk penalty enhancement under PEN 186.22.
- Drive-by-Shooting
Another pattern of crime portrayed by California street gangs is drive-by shooting, which generally leaves many people, including innocent bystanders, with severe injuries or death. If you are convicted of the crime and there is evidence it was committed in relation to a gang, you will face penalty enhancement under PC 186.22.
- Arson
Unlawful groups also engage in arson to destroy property. Arson is a felony that attracts severe penalties, depending on the property destroyed, injuries, or deaths caused. As a gang affiliate, a conviction for the crime will lead to a penalty enhancement.
- Witness Intimidation
When a member of a street gang faces criminal charges, the gang can threaten the victim or individuals to testify against one of them. The threats and intimidation are intended to dissuade the witness from testifying in a case likely to lead to the conviction of one of their own. Witness intimidation is a stern crime, but doing so to further gang activities attracts stricter penalties.
Gang Enhancement Penalties
Active involvement in a street gang is a PC 186.22(a) violation. The DA categorizes the offense as a wobbler, allowing them to file it as a misdemeanor or felony contingent on the case’s circumstances. A misdemeanor gang enhancement conviction attracts at most 12 months of jail incarceration and a court fine of no more than $1,000. A guilty verdict for a felony draws 36 months of imprisonment and financial court fines of no more than $10,000.
Comprehending PC 186.22 Penalty Enhancement
The STEP statute imposes penalty enhancement for crimes committed to benefit or to further a gang when the DA shows that:
- You participated in or attempted to commit criminality to help a gang
- You acted under instructions of or with a member of a gang
- You engaged in the offense to assist in furthering the gang’s activities.
The DA should demonstrate these elements if you are to face penalty enhancement.
Also, as the DA demonstrates these facts of gang enhancement, they must prove beyond moral certainty that you committed the baseline crime. Nevertheless, you must know that the statute does not obligate you to be an active associate or leader of the street gang to face sentence enhancement if the baseline crime is listed under PC 186.22.
The sentence enhancement applies to felonies as follows:
Generic Felonies
When the STEP statute applies in your case, and you are convicted, the court will sentence you to an extra twenty-four, thirty-six, or forty-eight months in prison. You will serve the additional sentence sequentially with the regular penalties for the baseline offense. Nevertheless, there are exceptions to the rule.
Serious Felonies
When the court finds you guilty of a grave felony where the elements of gang enhancement exist, the court will enhance the standard penalties for the underlying crime by 60 months. California laws prescribe over 42 serious felonies, including the following:
- Shooting or firing at an inhabited vehicle or building
- Particular drug offenses
- Issuing of criminal threats
- Peace officer assault with a gun
- Assaulting a peace officer using a lethal weapon
A guilty verdict for these and other felonies will result in a five-year penalty enhancement. The gang enhancement penalties are served alongside the standard consequences for the baseline felony offense.
Violent Felonies
If PC 186.22(b) relates to your violent felony and you are convicted, you risk an additional 120 months of prison incarceration. The violent felonies the law refers to are:
- Murder or homicide
- Any felony involving inflicting substantial bodily harm
- Mayhem
- Particular sex offenses
Special Felonies
Particular felonies or offenses, when committed in furtherance or benefit of a street gang, attract a more protracted penalty enhancement. These felonies are:
- Home invasion robbery outlined under PEN 213
- Drive-by shooting causing substantial bodily harm
- Firing at an inhabited building or occupied auto
- Carjacking
If the court issues a guilty verdict against you for any of these charges, you will face an additional 15 years of prison incarceration. When the conviction is for extortion by fear, physical force, or witness dissuasion, the court will impose a further 84 months in prison.
The court can prolong the additional seven years to life imprisonment if a guilty verdict for the baseline offense includes life incarceration as part of the possible penalties. When the court imposes further life incarceration for the gang enhancement, you are ineligible for early release until you serve at least 15 years of the sentence.
Misdemeanor Penalty Enhancement
Per Penal Code 186.22(d), a DA can change a misdemeanor to a felony if the offense was perpetrated to promote, benefit, or be associated with an unlawful group. Under the circumstances, instead of the typical misdemeanor penalty of twelve months in jail, the court sentences you to 12, 24, or 36 months in prison. It would help if you understood that even after the prosecutor converts the misdemeanor to a felony as sentence enhancement, the fresh felony will not be a new gang enhancement under PEN 186.22(b). The prosecutor does this because altering the offense to a felony is already a harsh punishment without including penalty enhancement.
Other Factors Affecting Sentencing
The STEP statute allows judges to consider additional factors before penalty enhancement. These other factors are:
1. Committing a Crime in a School Area
One of the considerations the court makes before sentence enhancement is whether you engaged in a crime in a learning institution zone or within 1000 feet of a learning institution when learning is in progress or when schoolchildren are in the zone. Any crime happening near a school is a serious one, which is why it qualifies as aggravating. The judge considers it when deciding to impose sentence enhancement.
2. Vacating Gang Enhancement if it is In the Interest or Sake of Justice
The STEP law gives judges the choice to vacate gang enhancements for justice’s sake. Nevertheless, before the court abandons gang enhancement, your criminal attorney must convince them that removing the enhancement is beneficial to the public and the justice system. These cases are rare and only happen if you have a compelling and experienced attorney.
3. Several Gang Enhancements
Even if your baseline crime results in multiple criminal charges, the STEP law only allows for one penalty enhancement. Nevertheless, when you face various crimes with numerous victims and the crimes are only separated by location and time, the prosecutor will prosecute for each of these crimes, and sentence enhancement will apply to each of them, meaning multiple penalty enhancements.
Contesting Gang Enhancement
Your attorney can use several defense tactics to contest the PEN 186.22 counts. These defense strategies include:
You did not Commit the Felony Offense to which Gang Enhancement Applies
One way to prevent sentence enhancement under PEN 186.22 is to contest the accusations for the baseline felony offense whose conviction leads to gang enhancement. When the prosecutor cannot prove beyond moral certainty that you committed the baseline charge, your attorney can contest the charges to have the felony reduced to a misdemeanor or have the case dismissed. If you prevent a felony conviction for the underlying crime, you will avoid gang enhancement.
You are Not Actively Participating in a Gang
One critical fact that prosecutors must prove under Penal Code 186.22(a) is that you are actively associated with a gang, mainly if there is no proof that you are a member of the unlawful group. Proving active participation in gang activities can be challenging for the DA. If they cannot confirm your membership with the gang, you will avoid sentence enhancement.
Your Conduct Was Not for the Gain of a Criminal Gang
The court imposes gang enhancement if there is evidence that the baseline crime was committed for the furtherance or benefit of a gang. Even with ties to an unlawful group, the DA must demonstrate that the crime fits a sequence of gang-related offenses. If they cannot prove you acted to benefit or promote the gang, you will not face sentence enhancement, even if you are guilty of the underlying crime. Also, your attorney can argue that you committed the offense for yourself.
The Gang Enhancement the Prosecutor is Imposing is illegal
California gang enhancement statutes are complex, and the DA can fail to understand them, unlawfully charging you under gang enhancement. If you face the accusations, your attorney will evaluate the underlying crime’s facts to prove that the circumstances in your case do not allow for gang enhancement or that the sentence enhancement is unjust.
Gang Enhancement in Not for Justice’s Sake
Even if the judge claims introducing gang enhancement in your case is for justice’s sake, your attorney can contest the argument. Sentence enhancement for justice’s sake is rare, and when it happens, the penalties are unnecessarily punitive and ineffective. Your attorney should explain your job record, community ties, family responsibilities, and personality to compel the judge not to enhance your sentence because it is not for justice’s sake.
You Were Coerced
When you face gang enhancement charges, it is because you committed a crime to promote or benefit a street gang. Therefore, a street gang can coerce you into committing a felony for their benefit. They do this by kidnapping or threatening harm to your loved one if you do not engage in the criminal activity they want you to. If your charges are based on these circumstances, your attorney can argue that you could not resist committing the crime because of the coercion from the gang.
Related Laws
California has two penalty enhancements that relate to gang enhancement and can be charged in place of or alongside PEN 186.22. These enhancements include:
1. Personal Usage of a Firearm
PEN 12022 provides sentence enhancements for using a gun in person to commit a felony. Per the law, you risk additional penalties when using a firearm individually when committing a felony offense. You do not have to use the gun in person. If your accomplice is armed during the felony, you will face sentence enhancement under PEN 12022.
Per PC 12022.5, you risk an additional 36, 48, or 120 months in prison for being armed while committing a felony offense.
2. 10-20-Life Statute
PEN 12022.3 prescribes the 10-20-life statute. Per the law, you risk sentence enhancement when:
- You used a firearm when committing a felony. Under the circumstances, you risk an additional and consecutive sentence of ten years on top of the regular penalties for the baseline felony.
- You individually fired the weapon. The sentence enhancement under these circumstances is twelve years.
- You individually shot a gun, causing death or substantial bodily harm to someone else at the scene apart from your accomplice. Here, the penalty enhancement is 25 years or life incarceration.
The felonies prescribed under this statute are kidnapping, murder, carjacking, and robbery.
Sentence enhancement under this law relates to gang enhancement when you utilize a firearm to commit a felony for the benefit of a gang.
Find a Competent Violent Crimes Attorney Near Me
If you are accused of a crime and convicted, you could face steeper penalties under gang enhancement statutes if there is evidence the crime was committed for the gain of a criminal gang. In these circumstances, you require the help of a profound defense attorney to prevent a conviction for the underlying offense or obtain a charge and sentence reduction. At the Pasadena Criminal Attorney, we have the experience and skills to craft the best defense strategies for a fair outcome. Call us at 626-689-2277 to schedule a meeting.
