The increase of gang-related violence and crime across California led to the 1988 enactment of the Street Terrorism Enforcement and Prevention Act, STEP Act. According to this law, any person who participated in gang-related criminal activities as a member or associate received harsher penalties compared to a nonmember. This means that if you are faced with any criminal allegations, a conviction as a gang member or affiliate will earn you enhanced sentencing besides the standard one.
In California, PEN 186.22 criminalizes participation in any gang-related activities. This means, being a member of a gang even without committing another offense, it is a crime by itself. If you face criminal allegations and the prosecutor claims you committed the offense to assist or a gang member, a conviction has severe repercussions. A lawyer from The LA Criminal Defense Law Firm can challenge the charges against you and earn you less harsh charges or have the charges dismissed.
What the Law Says about Participating in Street Gang Activities
The legal description or definition of participating in a street gang is found under PEN 186.22(a). Suppose you are accused of criminal activity, and the prosecutor hopes to have you convicted according to the STEP Act. In that case, the prosecutor must determine the various elements or facts of the offense. These elements include:
- You are an active participant in street gang activities
- You were aware the members of the gang engaged or participated in various forms of gang crimes
- You assisted, promoted, or enhanced their activities
If a prosecutor can prove these elements, a guilty verdict can be reached. However, an experienced attorney can challenge the prosecutor's evidence and have you face less harsh penalties. Understanding the legal description of this offense requires a thorough understanding of the elements, as outlined below.
According to PEN 186.22(a), active participation means engaging or party to the crimes, not passively. The law states you actively never participated if you never committed a significant amount of time in the activities or were not in the criminal group's leadership or are not active participants.
For instance, Peter has a gun and decides to rob the local convenience store. Following the robbery, Peter is arrested and charged with robbery, a felony offense in California. The police realize Peter is a person they frequently see socializing with street gang members in his neighborhood.
Peter admits to knowing some gang members and hangs out with them but is not their member. Additionally, robbing a convenience store with a gang is a common offense committed by gang members.
Because of Peter's association with gang members and the nature of the offense he committed, he is an active participant in the unlawful group. In this case, he receives a conviction for the robbery and earns a gang enhancement sentence according to PEN 186.22.
Member of a Criminal Gang
The law under PEN 186.22 defines a criminal gang as a group of not less than three members with the following characteristics:
- Has a name and a symbol or sign that identifies them
- Is centered along with the commission of a particular criminal offense or offenses, for instance, drug trafficking or carjacking or both
- Its members engage in illegal activities alone or collectively
Gang members or groups are known to participate or engage in a sequence of various criminal activities. Based on the gang enhancement law, a pattern of crimes means:
- Committing at least two offenses found in a select list
- On two or more different occasions and the participants are two or more persons
- And the offenses are committed over three years and
- One of the crimes must have been committed after the passing of the STEP Act in September 1988
In this case, the prosecutor does not have to show that the offenses were gang-related for your conviction. The list of offenses that show a pattern of violations by a gang is long.
Assisted, Promoted, or Furthered Gang Activities
When the prosecutor wants you to receive gang enhancement sentencing, they must prove that the activities you engaged in were to further or promote the gang group's activities. Under this, the prosecutor must determine:
- You committed the offense directly, and the offense is a felony in California
- Or you helped or facilitated the commission of the crime
Under this element, it means that if you committed the offense, the prosecutor must show it was for the gang's benefit. If you committed the crime for personal gain, your sentence could not be enhanced under the gang enhancement law.
Criminal Activities that Can Result in Gang Enhancement Penalties
Ordinary criminal activities can be committed by a gang member, the gang as a whole, or on behalf of the gang. When this happens, the defendants are punished more severely than an ordinary person committing the same crime. Some of the offenses that would result in gang enhancement include:
Assault – PEN 240
Typically, when you intentionally hurt another person, you face assault charges, according to PEN 240. This offense is typically punished as a misdemeanor. However, if you commit the same offense as a gang member or for the gang's benefit, it becomes a felony under aggravated assault. This offense can be committed for the or on behalf of a gang if revenge is sought. Assault as a gang-related offense becomes aggravated when:
- You use a deadly or dangerous weapon to commit the offense according to PEN 245(a)(1)
- You commit the offense with a firearm according to PEN 245(a)(2)
- You assault the victim in a way that can cause them significant bodily injuries according to PEN 245(a)(4)
- You assault your victim by use of caustic chemicals, PEN 244
- You used a deadly weapon to assault a school staff, PEN 245.5
You can also face charges for assaulting a peace officer for the benefit of the gang. Gang members often assault a law enforcement officer in retaliation or for revenge. If this is the case, the circumstances are given serious consideration before a verdict is issued.
But, with an experienced attorney, you can challenge these allegations by asking the prosecutor to prove the elements below:
- That you committed an act that naturally results in the use of force against another person
- You committed the act to benefit the gang or at their direction
- And as you carried out the activity, you knew you were using force against the person
Robbery – PEN 211
Robbery is another offense that can form a pattern for street gang crimes. This offense happens when you unlawfully take property or things belonging to another person and keep them for yourself without their permission. If an ordinary person committed the offense, they are prosecuted on felony charges and expect a jail time of 9 years if convicted.
However, robbery committed by a gang member or on its behalf attracts steeper penalties under gang enhancement laws. For you to receive these penalties, the prosecution must show:
- You belong in the illegal street gang group
- You took another person's items or property without their consent
- You used force, threats, or instilled fear to gain the items
- Your intention when taking the items or property was to deprive their owner of their use and instead benefit a criminal gang group with them
Typically, the circumstances of the offense determine how it is charged, first-degree robbery, or second. When the offense was committed to benefit or at the direction of a street gang, the penalties are further enhanced, according to PEN 186.22.
Drug Trafficking Offenses
Drug trafficking and other related drug crimes are common offenses with street gangs. Typically, the penalties when an ordinary person commits the offense for their private gain are harsh. The penalties become harsher when the offense is gang-affiliated. Criminal gang groups can engage in the selling, exporting, importing, transportation, distribution, and selling of controlled substances. If you are a gang member or are accused of committing any drug crimes for the benefit of the gang, your punishment will be enhanced according to PEN 186.22.
Murder or Manslaughter
Criminal groups can also murder to avenge or achieve what they want. For instance, if your leader ordered you to kill a fellow gang member that betrayed the group or a rival gang member, it ceases to be an ordinary murder. When the offense was committed for the gang group's benefit, the sentence you receive is more severe.
Shooting at an Occupied House or Car
Gang groups or members are known to commit the offense of shooting at a house with people or cars. Retaliation or asserting authority typically is the message gang members send when they commit this offense. Under ordinary circumstances, the offense is a severely punishable felony. Still, your sentence is enhanced when charged with committing it for a gang organization or as a gang member.
Drive-by shooting is a serious felony that can lead to significant injuries or death to its victims. Ordinarily, the crime is punished with severe penalties, but the penalties are enhanced under the gang enhancement laws when the offense is gang-related.
Arson as a Criminal Offense
Some street gangs also commit arson to cause destruction. If you are charged with arson, you face felony charges, and your punishment is also determined by the value of destruction you caused, and if injuries or fatalities resulted. If you are charged for committing the offense as a gang member or for a gang's benefit, your severe penalties become more enhanced under the gang enhancement statute.
Intimidating or Threatening a Victim or Witness
When a gang member faces a criminal charge, the other members can engage in threatening or intimidating those who will testify against the gang or the member. The purpose of the intimidation is to avoid a conviction or prevent a person from giving their testimony. Gang members also intimidate victims of their crimes against reporting it. Committing this offense is a serious violation, but doing it for the gang or its benefit or even as a gang member earns you steeper penalties.
Penalties for Participating or Engaging in a Gang
Earlier, we stated that mere participation or involvement with a gang group is an offense under PEN 186.22(a). This means the act of joining a gang group is a crime by itself prosecuted as a wobbler. If you are charged with a misdemeanor offense, your punishment would include county jail time for a year or less. Additionally, the judge may ask you to pay $1,000 in fine or less.
If the offense is a felony, you receive steeper penalties that include state imprisonment for sixteen, twenty-four, or thirty-six months. The judge may also order you to pay a fine not exceeding $10,000.
Understanding Sentence Enhancement According to PEN 186.22
According to this statute, you receive sentence enhancement for a gang-related crime under STEP ACT if the prosecution can determine all the crime's elements. The facts or elements a prosecutor must prove to earn a gang sentence enhancement under PEN 186.22 include:
- You engaged or tried to engage in crime to benefit a gang or at its direction or with the members of the street gang
- And as you committed it, your goal was to assist, enhance or further the gang's criminal activities
These elements are critical in earning you a sentence enhancement. However, as the prosecutor proves them; the facts of the primary crime you are charged with committing must also be determined. Importantly, it would be best if you remembered the law does not require you to be an active participant of the gang to receive the sentence enhancement under PEN 186.22.
The enhancement under PEN 186.22 applies differently to different felonies. Below, we discuss the various ways enhancement is applied when you commit various crimes:
Generally, when you are faced with criminal charges where gang enhancement laws under STEP Act apply, you will earn an extra prison sentence of two or three or four years. This extra prison sentence is served together with and consecutively with the standard punishment you earn for the primary offense you are charged with.
Enhancement under PEN 186.22 describes some underlying crimes as serious felonies. If your primary charge is for committing one of the listed serious felonies, your standard sentence is enhanced with five years more. The state of California lists more than 42 offenses as serious felonies. These include but not limited to:
- PEN 246 – Shooting or firing at an occupied or inhabited car or house
- Specific drug-related crimes
- PEN 245(a)(1) – Assaulting a peace officer using a dangerous weapon
- PEN 422 – Issuing criminal threats
- PEN 245(a)(2) – Assaulting a peace officer with a gun
If you are convicted of any of the above crimes, you receive an extra five years to your prison time. This new or additional sentence is served alongside the standard penalties received.
According to PEN 186.22(b), if you are charged with a violent crime as a gang member or for a gang, your standard sentence is enhanced with an extra ten years. The law categorizes more than twenty crimes under violent felonies. Some of the violent crimes that can earn you sentence enhancement include:
- PEN 187 – Murder
- Felonies where the victim sustained significant injuries
- Specific sex crimes
- PEN 205 and 203 under mayhem laws of California
PEN 186.22(b) further outlines specific felonies or crimes that, when committed to help or enhance gang activities, result in more prolonged sentence enhancement. If you are charged with the crimes below or others categorized as specific felonies, you earn an extra prison sentence of fifteen. These felonies include:
- PEN 213 – Home invasion robbery
- PEN 215 – Carjacking
- PEN 246 – Shooting or firing at an occupied vehicle or dwelling
- PEN 12022.55 – Drive-by shooting
Under specific felonies, you earn an extra seven years and sometimes life imprisonment if you commit the following offenses to benefit or at the direction of a gang. These include:
- PEN 518 – Extortion through fear or force
- PEN 136.1 Dissuading a victim or witness
If the underlying crime you are accused of committing earns you life imprisonment, you will not receive a credit that helps you become eligible for parole until you serve at least 15 years of your term.
Misdemeanor Sentence Enhancements
Some misdemeanor offenses can earn you sentence enhancement under PEN 186.22. If you are charged with a misdemeanor offense benefiting a gang or a member, the prosecutor can turn it to a felony. This means, instead of receiving the standard misdemeanor punishment of one year of county jail time, you receive one or two or three years of state imprisonment.
For instance, Peter, a gang member, brandishes a weapon violating PEN 417, a misdemeanor in California. As he does so, he shouts his gang's name, promoting its dominance in the neighborhood. Although the offense is a misdemeanor under ordinary circumstances, Peter committed the crime to benefit his gang. In this case, he will face felony charges and not a misdemeanor one. Even when the offense is converted to a felony, prosecutors cannot add sentence enhancement according to PEN 186.22 to the offense. This is because converting the sentence to a felony is harsh enough without adding sentence enhancement to the same crime.
Other Considerations Taken Before Sentencing
Further to the sentence enhancements discussed, according to the STEP Act, judges take additional considerations before sentencing or enhancing the sentence. These considerations include:
- Where the offense was committed, for instance, near a school or within a thousand feet of it
- During the time minors were in the school
An offense that occurs in a school area is taken more seriously and automatically qualifies it as an aggravating one. The judge, before sentencing, considers the location of the offense.
Abandoning Gang Sentence Enhancement when it Benefits Justice
The law also allows judges to use their discretion and remove gang enhancement in a particular case. However, before this is done, your defense attorney must persuade the court why that decision benefits the greater public and justice. Although this does happen, it is in infrequent and unusual circumstances.
Multiple Gang Enhancement Sentences
Usually, the law only permits one sentence enhancement for a crime, even when it leads to multiple charges. But, if you are charged with committing several crimes that:
- Affect several victims and
- Only distance and time separate them
You could face prosecution for both offenses, and the sentence's enhancement could also apply in both cases.
For instance, you and your gang members decide to go on a robbery spree. You rob one person in their home and drive to rob another. These two crimes have been committed by the gang or to the group's advantage, and they involve different victims. The offenses are further separated by time committed and distance. In this case, you will receive a conviction for both offenses and sentence enhancement for the two crimes.
Defenses against Earning Gang Enhancement
When you are charged with an offense that can result in your sentence receiving gang enhancement, your lawyer can challenge your behalf' allegations. With strategic defenses, you can obtain the best outcome following your case. Some of the strategies to ensure a favorable outcome include:
Fighting against a Conviction on your Primary Charges
Fighting your underlying felony charge can result in a reduction of charges or a dismissal of the allegations. If you prevail against a conviction on the underlying felony offense you are charged with; you will not receive gang enhancement on your sentence.
You are not an Active Gang Member
If you are faced with charges for violating PEN 186.22(a), the prosecutor must prove that you are an active member or participant of the gang activities. This is particularly so if you are not a declared member. The element of active membership can be a difficult one to prove for the prosecutor. If unable to prove your active membership, you are likely not to receive gang enhancement.
Your Offense was not for the benefit of a Gang
One of the critical elements to prove is that you committed the offense to benefit a gang or enhance their activities. Even when you belong to a gang, the prosecutor must prove that your actions benefit the gang group. For instance, if you committed a felony but not to benefit a gang, the prosecutor must prove it would benefit the gang to convert it to a felony.
Find a Lawyer Near Me
A criminal conviction comes with severe penalties besides those you would receive if you are charged under gang enhancement laws. If you are charged with a crime where gang enhancement laws apply, aggressive defense is critical to avoid the harsh penalties.
At The LA Criminal Defense Law Firm, we understand the adverse repercussions of a conviction and work hard to help you receive a favorable outcome. Call us at 310-935-1675, and we will discuss your case and defense options with you.