In 1988, the Street Terrorism and Prevention Act (STEP) was enacted by California legislators to curb gang violence. According to PC 186.22, a criminal street gang is an organization of three or more individuals, who have a common name, identifying symbol or mark, and whose primary activity is to engage in certain criminal activities.
As per the STEP act, gang associates or members who are convicted of felonies will receive punishment for those felonies; and other additional penalties because of their participation in a criminal street gang. Typically, such individuals receive the most severe penalties.
We at Leah Legal can help you build an excellent defense strategy if you have been charged with a crime involving gang affiliation in Los Angeles. We will also work towards helping you avoid the sentencing enhancement if you become convicted.
How California Defines the Criminal Offense of ‘Participating in a Street Gang’
The legal meaning of the criminal offense of ‘participating in a street gang’ is set out under PC 186.22(a). This legal definition highlights the three main elements that the prosecution must prove for the jury to find you guilty of this crime.
As per PC 186.22(a), it is a criminal offense to participate in the activities of a criminal street gang willfully. The court will convict you under PC 186.22(a) if the prosecutor successfully proves the following elements:
- You had ‘actively participated’ in a street gang
- You had knowledge of the fact that the members of the gang were engaging in a criminal activity
- You willfully furthered, assisted, or promoted, criminal conduct of a felony by a street gang
Let’s discuss these elements in greater detail:
As per California’s criminal street gang law, the term ‘actively participated’ means that you took part in the activities of the gang in an impassive manner, or not just by name. You don’t have to be a gang leader or a 100% active member. Also, it isn’t a requirement for you to have devoted a significant amount of your time to the gang’s activities.
Criminal Street Gang
The term ‘criminal street gang’ is used to refer to three or more individuals who have formed a specific group or organization. This group or organization should have a specific name, mark, or symbol. Also, the primary aim of the group or organization should be to commit one of the enlisted criminal offenses under California’s gang enhancement law. Furthermore, the gang members should have committed a ‘pattern of criminal gang activity,’ either by themselves or together as a group.
The legal definition of ‘pattern of criminal gang activity’ as per California's gang enhancement laws is hugely complex. But, very simply, this term means:
- Committing two or more offenses specified under California’s gang enhancement law
- In two or more different events and by two or more individuals
- Within three years
- One of the crimes was committed after the enactment of the STEP act (September 1988)
The prosecution does not need to demonstrate that the offenses committed were gang-related. Some of the crimes specified under California's gang enhancement law that can constitute a criminal gang activity pattern include robbery, drug crimes, murder, assault using deadly weapons, felony vandalism, and vehicle shootings, among others.
‘Furthered, Assisted, or Promoted’ a Gang Activity
For the prosecutor to provide proof that you ‘furthered, assisted, or promoted’ a street gang activity, he or she must show the court that you were actively and directly involved in the commission of a felony, or you acted as an aider or abettor in its commission. Additionally, you must not have aided or committed the crime alone, but with the help of two or more gang members. The court will not convict you of participating in a street gang if you had committed the offense by yourself. However, the court may still subject you to the gang enhancement as per the STEP law.
Punishments for Participating in a Street Gang
PC 186.22(a) is categorized as a wobbler. California prosecutors can charge it as a felony or a misdemeanor, depending on the facts and circumstances of your case.
The criminal penalties for misdemeanor PC 186.22(a) include a county jail term of a maximum of one year or a fine not exceeding $1,000. A felony participating in a street gang conviction may result in a state prison sentence of a maximum of three years or an order to pay a fine not exceeding $10,000.
The California (STEP Law) Gang Enhancement
PC 186.22(b) sets out the California gang enhancement, fondly referred to as the STEP law. Under Penal Code 186.22(b), you may receive a sentencing enhancement if you are convicted of the offense of participation in a gang. Of course, the court will only convict you of participating in a gang if the prosecutor has proved each and every element we discussed. However, it isn’t a requirement for the prosecutor to show that you were an ‘active member’ of the gang when you were involved in the commission of the crime.
Penal Code 186.22(b) does not stipulate a fixed timeframe by which your jail term or state prison sentence is increased. What Penal Code 186.22(b) sets out are different sentencing enhancements for various types of offenses. Therefore, how much your state prison sentence or jail term will increase will depend on the criminal offense you committed. Below, we analyze for you various sentencing enhancements for different criminal offenses as enlisted in PC 186.22(b):
1. Generic Felonies
If the jury convicts an individual of an offense where the STEP law applies, the judge will sentence him/her to an additional state prison/jail term of either two years, three years, or four years. However, this rule has numerous exceptions.
2. Serious Felonies
In an event where the court convicts a person of a serious felony in which the STEP act is applicable, this person will receive an additional state prison term of five years. As per California’s criminal laws, serious felonies are over 40 in number. Some examples of these serious felonies are assault using deadly weapons against firefighters or peace officers, certain drug crimes, issuing criminal threats, and shooting an occupied car or inhabited dwelling.
3. Violent Felonies
The court will sentence an individual to an additional state prison sentence of ten years if he/she receives a conviction of a violent felony, and PC 186.22(b) applies. There are over 20 violent felonies as per California’s criminal laws. Some of them include murder, mayhem, certain sex crimes, and any criminal offense that results in significant bodily injury to the victim.
4. Specific Felonies
PC 186.22(b) also sets out several specific felonies, which, if the convicts committed them with the primary intention of promoting or assisting a gang, can result in longer state prison sentences. Convicts of robbery, carjacking, drive-by shooting, or shooting at inhabited dwellings or occupied cars may receive an additional state prison sentence of 15 years, which may be lengthened to life. Individuals whom the court convicts for either dissuading a witness or extortion may face a state prison sentence of seven years, which can also be lengthened to life. Finally, if the punishment of the felony you have been convicted for is life imprisonment, then the court will sentence you to state prison for life. In such a scenario, you won’t qualify for parole until you complete at least 15 years in state prison.
According to PC 186.22(d), the California Department of Prosecution can convert a misdemeanor offense to become a felony. This is in circumstances where it was committed to benefit, assist, promote, or further the interests of a gang. In such a scenario, the court will sentence you to a state prison term of one year, two years, or three years; instead of receiving the normal misdemeanor sentence of a county jail term of a maximum of one year. If prosecutors choose this option, the law does not permit them to subject the ‘new felony’ to a gang enhancement under PC 186.22(b).
Other Considerations During Sentencing for PC 186.22(b)
Besides the gang enhancements prescribed for different types of offenses, the court may also consider several factors when punishing you as per the STEP law. Let’s analyze these factors:
If the crime was committed within a school/campus area and school activities were ongoing, the judge will take it as an ‘aggravating factor.’ This means that he/she can potentially increase your sentence.
Interest of Justice
According to PC 186.22, California judges have the discretion to strike off the gang sentencing enhancement for the sake of justice. However, this happens rarely and in unusual circumstances too, and only at the persuasion of an experienced and highly skilled criminal defense attorney.
You will be generally subjected to only one enhancement for the crime you committed, even if the crime leads to multiple charges. However, if you committed two or more offenses that can be distinguished by both distance and time, and they involved multiple victims, you will be charged for each act. You will also receive multiple gang sentencing enhancements.
How the Gang Enhancement Relates to Other Criminal Sentencing Enhancements
The gang enhancement relates to two other criminal sentencing enhancements in California: the ‘10-20-life' law and enhancement for the personal use of a gun. These two enhancements may be imposed instead of, or alongside the gang enhancement. Here is a detailed discussion of how these two enhancements relate to the California gang sentencing enhancement:
Personal Use of a Gun
The California sentencing enhancement for the personal use of a gun is set out under PC 12022. PC 12022 states that an individual will be subjected to an additional state prison sentence of one year if, while committing a felony, an individual is in possession of a firearm or his/her principal is armed with it. Moreover, PC 12022.5 imposes a consecutive and additional sentencing enhancement of three years, four years, or ten years if you utilize a gun to commit a felony.
In some cases, the prosecution may persuade the court for you to receive this sentencing enhancement, instead of, or in addition to the gang sentencing enhancement. This is especially in situations where you were in possession of, or you used a gun to commit a felony to further the interests of a criminal street gang.
The ’10-20-life’ enhancement is frequently charged alongside with the gang enhancement. This enhancement is enlisted under PC 12022.53. According to PC 12022.53:
- You will receive a consecutive and additional ten-year state prison sentence if you personally use a gun while committing a specific felony
- The court will issue you an additional state prison term of twenty years if you personally fire a gun while committing a specific felony
- If the victim suffered death or significant bodily injury because you fired a gun during the commission of a specific felony, you will receive an additional state prison sentence of twenty-five years, which may be lengthened to life
Because Penal Code 12022.53 imposes extremely grievous penalties, it is commonly referred to as the ‘use a gun, and you’re done’ law. Some examples of specific felonies that may trigger the imposition of the Penal Code 12022.53 sentencing enhancement include kidnapping, murder, carjacking, and robbery.
If you fire or use a gun while committing a specific felony to benefit a criminal street gang, then you may receive both the 10-20-life sentencing enhancement and the gang sentencing enhancement upon conviction. Also, if you were a principal while committing the specific felonies to further the interests of a gang and your accomplice utilizes a gun, you may still face the 10-20-life enhancement together with the gang enhancement, even if you didn’t personally discharge or use the gun.
How to Defend the California Criminal Street Gang Enhancement
Your defense attorney can use various tactics to fight PC 186.22 charges. Some of the legal defenses to the California criminal street gang enhancement include:
1. You did not commit the Felony to Which the Gang Enhancement Applies
You cannot receive a gang enhancement if the court does not convict you of the felony to which it applies. Note that the standard of proof in criminal cases is beyond a reasonable doubt. In most instances, the prosecution is usually unable to reach this high standard of proof because of insufficient evidence.
2. You weren’t an Active Member of the Gang
If the prosecutor has charged you under PC 186.22(a), the court will not impose an additional sentence if he/she fails to demonstrate that you were an active member of the gang. It is generally difficult for the prosecution to prove that you were a full and active member of the gang, and your attorney can find various loopholes to instill doubt in the minds of the jury.
3. You were not Acting to Further the Interests of a Street Gang
Even if you were a full member of the gang, the prosecution must still demonstrate that you committed the felony for its benefit. You will not receive the gang enhancement if you committed the felony due to your own individual reasons.
For instance, maybe you robbed another person just because you wanted money to help your family. In such a situation, the judge will not subject you to a sentencing enhancement because you were not acting for the benefit of the gang. However, an overzealous prosecutor may still stick you up with the sentencing enhancement for you to serve more state prison time. Even if the court convicts you of the offense of robbery, you can always avoid the gang enhancement if you have a highly skilled criminal defense attorney by your side.
4. The Gang Enhancement has been Imposed Illegally
California’s criminal street gang laws are quite complex. Sometimes, a prosecutor may fail to understand various statutes and institute illegal or inappropriate charges, no matter how well-meaning he/she is.
It is crucial for a criminal defense attorney to review each aspect of your charges meticulously to make sure that you have not been charged unfairly or illegally. If your attorney realizes that the prosecutor has imposed the sentencing enhancement illegally, he/she will fight to have it struck off.
5. The Gang Enhancement is Against the Interest of Justice
The judge can strike off a gang enhancement if it is against the interest of justice. However, this happens rarely and in unusual circumstances too. But, maybe you might qualify for a strike-off to protect the interests of justice – you never know!
Find a Los Angeles Criminal Defense Attorney Near Me
Over the years, we have gathered extensive experience in helping defendants facing gang affiliation charges. Don’t put your future at risk by attempting to speak out for yourself. Call us today at 818-484-1100 for a free case evaluation. We will be delighted to help you.