Gang enhancements are additional penalties imposed on criminal defendants convicted of crimes committed at the direction of, for the benefit of, or in association with a criminal street gang. These enhancements are intended to deter gang activity and provide additional punishment for those who commit crimes as part of a gang. Gang enhancements are consequential. The Darwish Law team understands this and is ready to offer assistance. Contact us today if you face criminal charges in Santa Ana.
Gang Enhancements Under California Law
Under Penal Code 186.22, a criminal street gang is defined as any ongoing association, organization, or group of three or more people, whether formal or informal, that has as one of its main activities as the execution of one or more of certain enumerated crimes, and that has a common name or identifying sign or symbol.
If a defendant is charged with a crime that has a gang enhancement, the prosecutor must prove that the defendant committed the offense at the direction of, for the benefit of, or in association with a criminal street gang. If the prosecutor can prove this, the court can impose additional prison time on top of the sentence for the underlying crime. The length of the gang enhancement depends on the severity of the underlying offense and the defendant's criminal history.
It is important to note that for a gang enhancement to apply, the jury must find the defendant guilty of the underlying crime. Gang enhancement is not a separate crime but rather an additional penalty imposed on top of the sentence for the underlying offense.
To be legally considered a criminal street gang, the group must have at least three members, and at least one of the group's primary activities must be the commission of certain enumerated crimes. These crimes include, but are not limited to:
- Witness intimidation — Penal Code 136.2.
- Murder — Penal Code 187.
- Mayhem — Penal Code 205.
- Torture — Penal Code 206.
- Kidnapping — Penal Code 207.
- Robbery — Penal Code 211.
- Home invasion — Penal Code 213.
- Carjacking — Penal Code 215.
- Assault with a deadly weapon — Penal Code 245(a)(1).
- Assault with a deadly weapon — Penal Code 245(a)(2).
- Shooting at an inhabited car or dwelling — Penal Code 246.
- Rape — Penal Code 261.
- Counterfeiting — Penal Code 350.
- Criminal threats — Penal Code 422.
- Arson — Penal Code 451.
- Credit card theft — Penal Code 484.
- Grand theft — Penal Code 487.
- Grand theft auto — Penal Code 487(d)(1).
- Extortion — Penal Code 518.
- Felony vandalism — Penal Code 594.
- Possession of firearms — Penal Code 25850.
- Drive-by shooting — Penal Code 26100.
- Drug trafficking, distribution, sales — Health and Safety Code 11352.
- Specific sex crimes.
- Any felony that causes the victim to sustain a great bodily injury.
In addition, the group must have a common name or identifying symbol or sign, like a particular hand sign, graffiti, or color.
A group must not be formally organized to be considered a criminal street gang. Even informal groups or loose associations of individuals are deemed criminal street gangs if they meet the other criteria.
Pattern Of Criminal Activity Under California Law
A "pattern of criminal activity" is defined as the commission of two or more crimes that are not simply isolated incidents but are part of a series of crimes connected or that show a common scheme or plan.
The concept of a pattern of criminal activity is relevant in several contexts. For example:
- Under Penal Code 186.22(b), a criminal street gang can be deemed a "patterned criminal street gang" if it engages in an unlawful activity pattern. This can result in more severe penalties for crimes committed by members of the gang.
- Under Penal Code 186.22(f), a person who actively participates in a pattern of criminal activity can be charged with "participation in a criminal street gang," a separate crime.
- Under Penal Code Section 667.71, a person convicted of two or more serious felonies and who has served two or more prior prison terms can be sentenced to an additional prison term if the court finds that the person has engaged in a pattern of criminal activity. This added prison term is known as a "pattern offender enhancement."
To prove that a person or group has engaged in a pattern of criminal activity, the prosecutor must show that the crimes were not simply isolated incidents but connected or showed a common scheme or plan. This can be demonstrated through evidence like the use of similar methods or techniques in the commission of crimes or the involvement of the same individuals in multiple crimes.
Elements of the Crime
PC 186.22a provides the elements the prosecution must prove for the jury to find you guilty and for the courts to issue the penalties PC 186.22a outlines. They must prove that:
- You actively participated in a criminal street gang.
- You knew the gang’s members engaged in a pattern of gang offenses, and
- You witnessed, furthered, promoted, or assisted felony activities by gang members.
According to Penal Code 186.22(f), "active participation" in a criminal street gang means that a person actively assists, promotes, or encourages the activities of the gang. It does not necessarily mean that the person must personally commit crimes as part of the gang.
Examples of activities that could be considered "active participation" in a criminal street gang include:
- Recruiting new members for the gang.
- Participating in gang meetings or rituals.
- Displaying gang tattoos or symbols.
- Wearing gang colors or clothing.
- Participating in gang-related graffiti or vandalism.
- Selling drugs or other illegal goods on behalf of the gang.
- Providing protection or support for the gang or its members.
A person can be charged with "participation in a criminal street gang" even if they have not personally committed any crimes as part of the gang. Actively promoting or encouraging the gang's activities can be enough to be charged with this crime.
Under Penal Code 186.22(b), a gang sentencing enhancement can be imposed on a criminal defendant convicted of a crime committed at the direction of, for the benefit of, or in association with a criminal street gang. This enhancement can result in a longer prison sentence for the defendant.
For a gang sentencing enhancement to be applied, the prosecutor must prove that:
- You committed the crime at the direction of, for the benefit of, or in association with a criminal street gang. If the prosecutor can prove this, the court can impose an additional prison term on top of the sentence for the underlying crime. The length of the gang enhancement depends on the severity of the underlying offense and the defendant's criminal history.
- You committed the offense, promoted, furthered, or intended to promote criminal gang-related conduct.
For a gang sentencing enhancement to be applied, the defendant must be found guilty of the underlying crime.
The main difference between the two sections is that Penal Code 186.22a applies to individual defendants charged with a crime, while Penal Code 186.22(b) applies to the criminal street gang. It does not require your active participation.
Legal Defenses You Can Assert
A defense attorney could assert various defenses depending on the case's specific circumstances. An experienced defense attorney can advise you on the most appropriate defenses to present in your case.
Some potential defenses you can assert in a gang enhancement case include the following:
a) You Did Not Act for the Benefit of a Gang
Prosecutors must prove that the defendant committed the underlying offense at the direction of, for the benefit of, or in association with a criminal street gang. If you can demonstrate that you did not act to benefit a gang, you can avoid gang enhancement.
To establish this defense, you need to present evidence that you were not acting in furtherance of the gang's criminal activities. For example, you could argue that you committed the offense for personal gain or some other reason unrelated to the gang.
This defense could be challenging to establish, as the prosecution could present evidence that the defendant was acting in furtherance of the gang's interests. Some evidence includes showing that the offense was committed in a manner consistent with the gang's modus operandi or that the defendant was wearing gang-related clothing or symbols at the time of the crime.
b) No Gang Affiliation
You could argue that you were not affiliated with the gang and did not participate in the gang's activities. To establish this defense, you should present evidence that you were not a gang member or did not associate with gang members.
The prosecution will likely present evidence to show you were a gang member or that you participated in the gang's activities. This evidence includes testimony from witnesses, gang-related tattoos or clothing, and other evidence linking the defendant to the gang.
If you convince the jury that you were not affiliated with the gang and did not participate in the gang's activities, you could avoid a gang enhancement.
c) Entrapment
Entrapment is a defense available to a defendant in a gang enhancement case if the defendant can show that they were induced by law enforcement to commit the underlying offense. To establish entrapment, you must show that you were not predisposed to commit the crime and that you were induced to commit the offense by law enforcement.
Courts will dismiss the charge against you if you can establish entrapment. Entrapment is a tough defense to prove, as the prosecution will typically argue that you were already predisposed to commit the offense and that law enforcement provided an opportunity for the defendant to commit the crime.
d) Duress
The defense of duress is available if you can show that you were forced to commit the underlying offense against your will. To establish coercion, you must show that you were threatened with imminent death or serious bodily injury if you did not commit the crime and that you had no reasonable opportunity to escape the situation.
Duress is difficult to establish, as the prosecution will typically argue that the defendant had a choice to refuse to commit the offense and that they acted voluntarily.
e) Mistake of Fact
You have to show that you did not have a criminal intent to commit the underlying offense under this defense. You must show that you reasonably believed that your actions were justified.
For example, you could argue that you believed you were acting in self-defense or defense of others when they committed the underlying offense. If you can show that you acted with a good faith belief that your actions were justified, you could avoid a gang enhancement.
f) Bifurcated Trial
A bifurcated trial is a legal procedure in which a case is divided into two separate trials. In the first trial, the jury determines the defendant's guilt or innocence on the underlying offense. A second trial is held to determine the punishment or sentence if the defendant is found guilty.
The bifurcated trial procedure could be used in criminal cases involving gang enhancements. The purpose of a bifurcated trial is to allow the jury to focus on the guilt or innocence of the defendant without being influenced by evidence of the defendant's prior criminal history or other circumstances that could be relevant to punishment.
You could request a bifurcated trial in a gang enhancement case to avoid having evidence of your gang membership or other circumstances that could be prejudicial to your case being presented to the jury until after the jury finds you guilty of the underlying offense.
Gang Enhancement Penalties
Courts impose varying penalties depending on which section of Penal Code 186.22 you are guilty of.
a) Penal Code 186.22(a)
PC 186.22(a) is a wobbler. Convictions for misdemeanor violations result in:
- A jail sentence of one year,
- A fine of $1,000 or both.
Felony convictions, on the other hand, result in:
- Three-year prison sentence.
- A maximum fine of $10,000 or both.
b) Penal Code 186.22(b)
The additional prison time for convictions under PC 186.22 depends on the circumstances of the case, as outlined below:
- Four years if you committed a generic felony.
- Five years if you committed a serious felony — PC 1192.7 and 1192.8 list serious felonies.
- Seven years to life if convicted of:
- Extortion.
- Threats to witnesses or victims.
- Ten years if you committed a violent felony — PC 667.5.
- 15 years to life if you committed one of the specific felonies mentioned in the statute, for example,
- Home invasion robbery.
- Carjacking.
- Drive by shooting causing bodily harm, or
- Shooting at an unoccupied building.
Frequently Asked Questions
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What if I joined a group but was unaware of any criminal activity? Can I be charged with a gang affiliation enhancement?
You could face gang enhancement even if you were unaware of any criminal activity within the group or club you joined. Under California law, a person can face gang enhancement if they commit a crime "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members."
This means that if the prosecution can prove that you committed a crime for the benefit of a gang, even if you were unaware of the gang's criminal activities, you could face gang enhancement.
If you have been charged with a gang enhancement and you were unaware of any criminal activity going on within the group or club you joined, it is possible to defend against the charge by presenting evidence that you did not have the specific intent to promote, further, or assist in any criminal conduct by gang members.
An experienced defense attorney can advise you on the most appropriate defenses to assert in your particular case.
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What if I was once part of a gang, but the gang did not influence my crime because I am no longer a member? Could I be convicted of a gang affiliation enhancement?
You will face gang enhancement in California even if you are no longer a gang member when you commit a crime. The prosecution must prove that you committed a crime for the benefit of a gang, even if you are no longer a gang member. Only then will you face gang enhancements.
Contact a Criminal Attorney Near Me
Gang sentencing enhancements are intended to deter gang activity and provide additional punishment for those who commit crimes as part of a gang. They are a tool prosecutors can use to hold gang members accountable for their actions and disrupt criminal street gangs' activities. However, in some situations, the state, in its push to deter individuals from engaging in gang-related activities, will aggressively push for gang enhancement penalties in cases that do not merit the additional penalties. Thus, you need the assistance of an aggressive criminal defense attorney.
Contact the Darwish Law team today at 714-887-4810 if you or a loved one faces prosecution in Santa Ana for being involved in gang activities to avoid gang enhancements.