Gang Sentencing Enhancements in California - Penal Code 186.22 PC
In response to the proliferation of street gang activity in California, typically associated with violent crimes, the State of California has specifically enacted laws to create enhanced penalties for street gang activities.
The Street Terrorism Enforcement and Prevention Act (STEP), passed in 1988, created several enhancements for crimes committed in connection with gang activity.
These enhancements are codified in Penal Code 186.22 PC. They allow judges to impose significantly more severe sentences on people who commit crimes in the context of gang activity—including, up to, life imprisonment.
Penal Code 186.22 PC states that anyone who willfully participates in gang activities, or joins other members, while carrying out a crime can be found in violation of California's gang enhancement laws. The sentencing enhancement adds additional time to a prison sentence for any offense committed in furtherance of gang activity.
What exactly is a gang? PC 182.22 PC describes a criminal street gang as an ongoing organization of 3 or more people with a common name or identifying marks/symbols, and their members engage in specific illegal activity.
Put simply, a criminal street gang is any group of 3 or more people that share a common name and participate in a pattern of committing a variety of crimes. PC 186.22 gives prosecutors a sentencing enhancement as long as they can prove the underlying criminal activity was part of street gang participation.
In this article by our Los Angeles criminal defense lawyers, we will review this topic in more detail below.
Overview of Street Gang Enhancement Laws
Penal Code 186.22 addresses two categories of criminal gang activity and associated penalties. PC 186.22a PC makes it a crime to actively participate in a street gang while knowing that the gang engages in a pattern of felony criminal activity and actively furthering or assisting that activity.
PC 186.22b PC is the penalty enhancement law for criminal gang activity. If a person is convicted of a crime in association with (or for the benefit of) a criminal street gang, PC 186.22b adds a mandatory extension of prison time to the penalty for that crime. Some important notes about PC 186.22 are discussed below.
Taken together, these laws bring stiff penalties for any crime associated with a gang, whether or not the person considers themselves a member. For example, suppose you have friends in a gang, and you assist them in severely beating a rival gang member. In that case, you are subject to gang enhancements for participating in the gang's criminal activity even though you're not a gang member.
You can be charged under PC 186.22a for being an "active participant" in a gang, whether or not you were a firsthand participant in any crime. For example, if you are an active gang member, you could be charged for bringing the gun that someone else used to murder a rival member because you actively assisted in the commission of the crime.
You can't be convicted of gang activity under PC 186.22a for being a gang member "in name only." Prosecutors must prove that you were an active participant.
The gang enhancements detailed in PC 186.22b only go into effect if you are convicted of the original crime. If you're charged with a gang-related murder but are ultimately acquitted, the enhanced penalties don't apply. The related laws to Penal Code 186.22 criminal street gang enhancement include:
- Penal Code 12022.7 PC – great bodily injury enhancement,
- Penal Code 12022.53 PC – 10-20-life law, use of a gun,
- Penal Code 422.75 PC – hate crime sentencing enhancement.
What is a Street Gang?
As noted above, by California law, a "street gang" is defined as an association, or group of three or more persons, whether formal or informal, that:
- Identifies itself by name, a sign, or a symbol;
- Engages in one or more criminal acts among its primary activities; and
- Engages in an ongoing pattern of gang-related criminal activity.
California has identified more than 600 different known criminal street gangs. Still, under PC 186.22, any group that matches the criteria listed above qualifies as a street gang. Any crimes committed in association with that gang are subject to penalty enhancements.
What is Pattern of Criminal Activity?
As stated, a criminal street gang's primary activity is to commit certain crimes in a pattern of criminal activity. The definition of a “pattern of criminal activity means:
- Commit two or more crimes listed below;
- Two or more separate times by two or more people;
- Within three years of each other;
- Prosecutor must prove the crimes were gang-related.
The list of specific California crimes that can establish a pattern of criminal gang activity includes serious and violent felony crimes listed below:
- Penal Code 136.2 PC – intimidation of witness or victim,
- Penal Code 187 PC – murder,
- Penal Code 205 PC – mayhem,
- Penal Code 206 PC – torture,
- Penal Code 207 PC – kidnapping,
- Penal Code 211 PC – robbery,
- Penal Code 213 PC – home invasion,
- Penal Code 215 PC – carjacking,
- 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 261 PC – rape,
- Penal Code 422 PC – criminal threats,
- Penal Code 451 PC – arson,
- Penal Code 459 PC – burglary,
- Penal Code 484 PC – credit card fraud,
- Penal Code 487 PC – grand theft,
- Penal Code 487(d)(1) – grand theft auto,
- Penal Code 518 PC – extortion,
- Penal Code 594 PC – vandalism,
- Firearm Possession,
- Specific sex crimes,
- Obtaining fake identification from DMV,
- Drug trafficking, sales, and distribution
- Any felony crime that inflicts a great bodily injury.
To prove you promoted, assisted, or furthered a felony crime by a gang, a prosecutor has to show you directly committed a felony crime or aided and abetted.
What Are the Penalties for Gang-Related Crimes?
The penalties for crimes committed in connection with a street gang may be significantly more severe than those for the same crimes without gang enhancements. Here's an overview of what to expect if you are convicted:
PC 186.22a is a "wobbler" crime, which may be charged as a misdemeanor or a felony. If convicted of a misdemeanor, you could face fines up to $1000 and up to a year in jail. If convicted of a felony, you could face up to $10,000 in fines and up to 3 years in prison.
If your conviction is subject to the enhanced penalties of PC 186.22b, you will face additional mandatory prison time based on the type of crime committed.
This enhanced sentence is imposed consecutively, meaning it begins when your first sentence ends. The amount of additional prison time depends on the type and severity of the crime, ranging from 4 years for basic felonies to 10 years for violent crimes—and between 15 years and life imprisonment for certain specified felonies.
See related: What is a Criminal Conspiracy?
What Are the Common Defenses?
Because the enhanced penalties for gang-related crimes are pretty severe, having a skilled defense attorney is a key to obtaining a more favorable outcome. Fortunately, several solid defense strategies may either avoid conviction or keep the enhanced penalties from going into effect. These are discussed below.
No gang affiliation. A conviction under PC 186.22a depends on your being an "active participant" in a gang regarding the felony in question. Your attorney may argue that you are either not a gang member or a member "in name only" and was not involved in the crime.
The crime was not committed for the gang's benefit. In other words, perhaps you committed a felony, but you did it on your behalf and not in the name or for the benefit of any gang. The enhanced penalties can only apply if the crime was gang-related.
No underlying crime. Your attorney may present evidence that exonerates you from involvement in the underlying offense. If you didn't commit a crime in relation to the gang, you can't be subject either to the underlying or enhanced penalties.
Eisner Gorin LLP is a criminal defense law firm in Los Angeles County serving people across Southern California. You can reach us for an initial case review by calling (310) 328-3776 or filling out our contact form.