Definition and Aspects of Gang Enhancement Sentencing Law:
Under California Penal Code Section 186.22 (PC 186.22), participating in a criminal street gang is an offense against the law. This statute does not only make activity within a gang a crime, but any outstanding illegal actions result in sentencing enhancements and additional prison time for members. California Penal Code Section 186.22 (PC 186.22) was adopted under California’s Street Terrorism Enforcement and Prevention Act (“STEP”), with the intent of creating harsher punishments for crimes committed in the name of gangs or gang-related activities.
Participation in a gang is against the law. Under California Penal Code Section 186.22(a) (PC 186.22), to be charged, Prosecutors must prove the following:
- The defendant actively participated in a criminal street gang;
- While participating in this gang, the defendant was aware that members of the gang engaged in a pattern of criminal gang activity;
- The defendant willfully assisted, furthered, or promoted felony criminal conduct by members of the gang by either
1. Directly committing a felony
2. Aiding or abetting in a felony
The term ‘actively participated’ refers to the defendant devoted a substantial amount of their time to the gang. Under Gang Enhancement law, the defendant does not have to be the leader, or even a current member of the gang to be prosecuted.
Under the Gang Sentencing Enhancement in California Penal Code Section 186.22(b) (PC 186.22), sentencing can be increased to those convicted of a criminal offense given the following is proved:
- The defendant committed the crime for the benefit of a criminal street gang
- The defendant intended to assist, further, or promote criminal conduct by gang members
A criminal street gang is defined as an ongoing group of three or more people, identifying under a common group name or symbol, operated by committing crimes as one of the primary activities and doing so over an extended period of time.
Example of a Gang Enhancement:
A man joins a well-known street gang that is in the business of distributing and selling illegal substances. After joining, the man is asked to transport a substantial amount of heroin for sale. Under California Health and Safety Code Section 11352 (HSC 11352), he committed a felony for the transportation of a controlled substance, and he would face additional years in prison for Gang Enhancement.
Gang Enhancement Related Criminal Offenses:
- Conspiracy charges – California Penal Code Section 182 PC
Defenses to Gang Enhancement:
Law enforcement agencies often send undercover agents to work themselves into crime rings. By trying to catch someone performing an illegal action, if the undercover agent is too aggressive in pursuing a criminal and therefore pushed him/her into committing the crime, it counts as entrapment. If the defendant can convince the Judge that he/she would not have committed the criminal offense, without the encouragement of the undercover agent, the case could be dismissed.
The defendant could also claim to be falsely accused of the crime. In many cases, the defendant has ties or connections to the gang or various gang members. However, if he/she is not a part of it and isn’t aware of criminal activity going on within the group, a good criminal defense lawyer could argue the Gang Enhancement allegations to avoid a conviction.
Consequences or Penalty for Gang Enhancement charges:
Penalties under PC 186.22 vary depending on if you are charged with the crime of being a member, or if you are charged with a crime, with the gang enhancement attached to your crime.
- Criminal Street Gang Participation PC 186.22(a) is considered a “wobbler” offense, which means it can be prosecuted as either a felony or a misdemeanor under California Penal Code Section 186.22(a). If classified as a misdemeanor, the maximum punishment is one year in jail and a fine up to $1,000, however, if charged with a felony, the maximum prison sentence increases to three years and a fine up to $10,000.
Gang Enhancement can quickly convert any misdemeanor offenses into a felony, resulting in up to three years in prison.
If the underlying offense is a felony, the consequences are more severe, ranging from two additional years in prison to a life sentence. The severity of the punishment depends heavily on the circumstances and the seriousness of the underlying felony charge.
Convictions for participating in Criminal Street Gangs are Strike offenses under California’s Three Strike Law. Keep in mind, that if your underlying offense is also a strike offense, such as Robbery, then you could face an additional strike on your record. This would have severe implications on people trying to Immigrate to the United States as well as people trying to obtain Professional Licenses. This is not a Sex Offense under PC 290 unless the underlying crime is already a sex offense that requires registration. In other words, a conviction for the gang enhancement will not make you register as a Sex Offender, but the offense charged with the enhancement can be one.
If you know anyone charged with a criminal case and additional Gang Enhancement allegations, it is imperative that you meet with an experienced criminal defense attorney right away.
For an experienced attorney in your corner, Action Lavitch from Action Defense Lawyers is available 24/7 at (747) DEFEND U or (747) 333-3638. With a proven track record and speaking both English and Spanish, Action Lavitch and the team from Action Defense Lawyers provide skilled legal representation and professional advice. Having an above 90% success rate for clients, Action Defense Lawyers is the go-to for those charged with Gang Enhancement (California Penal Code Section 186.22 PC). Book a free consultation today.