Review of California Gang Related Charges and Defenses
Gang violence is a problem that lawmakers in California have paid special attention to and have passed laws that harshly treat suspected gang members and those who are accused of being involved in gang activity.
There are many local, state and federal enforcement efforts that target gang activity and there are increase penalties for gang-related crimes.
For example, the Los Angeles County District Attorney's Office has a separate hardcore gang division that is staffed with dozens of lawyers.
Further, The Community Law Enforcement and Recovery program involves numerous law enforcements agencies that target gang activity.
The Los Angeles Police Department has separate gang units within their patrol stations, such as the Devonshire, Foothill, and Northeast Division.
There are an estimated 1,500 street gangs in Los Angeles County alone.
Some of the most common crimes related to gang activity in the state of California include:
- Penal Code 211 PC – robbery,
- Penal Code 664/187 PC – attempted murder,
- Penal Code 215 PC – carjacking,
- Penal Code 26100 PC – drive-by shooting,
- Penal Code 136.1 PC – witness intimidation,
- Penal Code 459 PC – burglary,
- Penal Code 518 PC – extortion.
For additional information, our Los Angeles criminal defense lawyers will explain the various gang laws below.
What Are Gang Offense Laws in California?
In 1988, the state of California passed the Street Terrorism Enforcement and Prevention Act. The STEP Act was specifically enacted to combat street gangs and gang activity in California.
Under the STEP Act, a new section of the California Penal Code was created, starting at Penal Code 186.20 PC.
Under Penal Code 186.22(a) PC, it is illegal to “participate in a street gang” or help in any gang's criminal conduct.
Penal Code 186.22 PC is commonly known as the gang sentencing enhancement and adds additional time to a prison sentence for crimes that were committed in furtherance of gang activity.
Street gang description
PC 182.22 describes a criminal street gang as any ongoing organization of 3 or more people with a common name, or identifying marks, who engage in specific criminal activity.
This statute gives prosecutors a sentencing enhancement if they are able to prove, beyond any reasonable doubt, your underlying criminal activity was part of street gang participation. Penal Code 190.2 PC defines a special circumstances murder.
What Factors Must Be Proven for a Gang Enhancement?
For a prosecutor to prove that an individual is “participating in a street gang,” they must prove that:
- The individual actively participated in a street gang,
- They knew that the gang engages in a pattern of criminal activity, and
- The individual willfully helped the gang commit felonious conduct.
An individual does not even have to be an active gang member to violate the STEP Act.
For example, police officers arrest an individual for grand theft auto. Another officer thinks he recognizes the arrestee from previous contacts with known gang members in the community.
The arrestee tells officers he is not currently active with the gang's activities, but will sometimes just hang out with them.
His current arrest for grand theft auto has similar traits to recent auto theft cases that were have known to be committed by the gang he hangs out with.
Thus, in this example, he could be considered actively participating in that gang and face a PC 186.22 sentencing enhancement.
What is Pattern of Criminal Gang Activity?
A pattern of criminal gang activity can be established if an individual is alleged to have:
- committed two or more felony offenses below,
- two separate times with two or more people,
- within a time period of three years of each other.
The list of certain California crimes that could establish a “pattern of criminal gang activity” include what is known as serious, violent, and specific felony offenses that include the following:
- Penal Code 245(a)(1) PC - assault with a deadly weapon,
- Penal Code 245(a)(2) PC – assault with a firearm,
- Penal Code 246 PC – shooting at inhabited dwelling or car,
- Penal Code 422 PC – criminal threats,
- Penal Code 136.2 PC – dissuading a witness,
- Penal Code 207 PC – kidnapping,
- Penal Code 211 PC – robbery,
- Penal Code 213 PC – home invasion,
- Penal Code 187 PC – murder,
- Penal Code 205 PC – mayhem,
- Penal Code 518 PC – extortion
- Penal Code 487 PC – grand theft,
- Penal Code 487(d)(1) PC – grand theft auto,
- Penal Code 451 PC – arson,
- Penal Code 261 PC – rape,
- Penal Code 594 PC – felony vandalism,
- Penal Code 484 PC – credit card fraud,
- Drug trafficking, distribution, and sales,
- Firearm possession,
- Specific California sex crimes,
- A felony crime inflicting a great bodily injury.
This list above does not include all the types of felony offenses that can be used to establish a pattern of criminal gang activity.
It is important to understand specifically what you are accused of if you are alleged to have violated the STEP Act, as the potential penalties for gang involvement can be very harsh.
What Are the Penalties for Gang Offenses?
If you are convicted of a gang-related offense, then you can face penalties under the STEP Act at Section 186.22 PC, which includes:
- Participating in a street gang under 186.22(a) PC: a violation of this section can be punished by up to one year in the county jail or state prison for up to 16 months, two years, or up to three years in certain circumstances.
- The gang sentencing enhancement under 186.22(b) PC: this section of the STEP Act allows a judge to add additional prison time if an individual commits a felony associated with a gang. Depending on the circumstances of the alleged offense, a judge can add two to fifteen additional years to a gang-related conviction and can even impose a life sentence.
If a prosecutor does this, they cannot further add the gang sentencing enhancement to the newly charged felony.
People v. Arroyas
In People v. Arroyas, the California Court of Appeals held that prosecutors could not apply a double dose of punishment by enhancing a misdemeanor to a felony and then further enhancing the felony sentence under the STEP Act.
Special Directive 20-08 (bold)
Under the Los Angeles County District Attorney's Office Special Directive 20-08, prosecutors in Los Angeles County are no longer seeking sentence enhancements for gang connections, which is part of the new reforms to sentencing.
If you have already been sentenced under the gang sentencing enhancement, then you may be eligible for resentencing by the court.
What Are Some Defenses to Gang Offenses?
Several defense strategies can be raised if you are accused of violating the STEP Act by allegedly being involved in criminal gang activity; they include:
- You did not commit the underlying crime in question;
- You did not participate in gang activity;
- Your actions were not intended to help a gang;
- There is no gang affiliation.
Clearly, you can't receive a gang sentencing enhancement unless you are convicted of the underlying felony crime.
We might be able to negotiate to get the charges reduced to a misdemeanor or even get the case dismissed.
Further, in order to receive a PC 186.22(b) gang sentencing enhancement, it must be proven you acted for the benefit of a gang.
We might be able to challenge the prosecutor by showing the felony conviction had no connection to gang activity. Your specific case might have other defenses.
If a prosecutor is attempting to use the gang sentencing enhancement improperly or illegally, or if imposing the gang sentencing enhancement would result in a sentence against the interests of justice, we can raise these issues with the judge during sentencing if you have been convicted.
If you are facing gang-related charges in California, then call the criminal defense law firm of Eisner Gorin LLP to learn how we can help you.
We have two office locations in Los Angeles County, including Century City and Van Nuys. Contact our firm for a consultation at (310) 328-3776.