Gang Enhancement Explained

Under Penal Code section 186.22(a) pc, only someone who is an “active participant” in a gang can be charged with a sentence enhancement. 

Whereas under section 186.22(b), even someone who is not an active participant can receive a sentence enhancement, such as in a case where the person is not a gang member but committed a crime for the benefit of a gang.

Penalties

Generic Felony

Generally, the person shall be punished by an additional term of two, three, or four years determined at the court’s discretion.

Serious Felony

If the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years.

Violent Felony

If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years.

Commission On or Near School Grounds:

If the underlying felony described in paragraph (1) is committed on the grounds of, or within 1,000 feet of, a public or private elementary, vocational, junior high, or high school, during hours in which the facility is open for classes or school-related programs or when minors are using the facility, that fact shall be a circumstance in aggravation of the crime in imposing a term under paragraph (1).

Specicif Felony Offenses

• Home invasion robbery: Imprisonment in the state prison for 15 years, if the felony is a home invasion robbery, in violation of subparagraph (A) of paragraph (1) of subdivision (a) of Section 213; carjacking, as defined in Section 215; a felony violation of Section 246; or a violation of Section 12022.55.
• Extortion: Imprisonment in the state prison for seven years, if the felony is extortion, as defined in Section 519; or threats to victims and witnesses, as defined in Section 136.1.
• No parole for 15 years: If a person commits a felony punishable by imprisonment in the state prison for life, he/she shall not be paroled until a minimum of 15 calendar years have been served.
• Any person who is convicted of a public offense punishable as a felony or a misdemeanor, which is committed 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, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison for one, two, or three years, provided that any person sentenced to imprisonment in the county jail shall be imprisoned for a period not to exceed one year, but not less than 180 days, and shall not be eligible for release upon completion of sentence, parole, or any other basis, until he or she has served 180 days. If the court grants probation or suspends the execution of sentence imposed upon the defendant, it shall require as a condition thereof that the defendant serve 180 days in a county jail.

Enhancements

For Multiple Gang Crimes: Separate criminal street gang enhancements may be applied to gang crimes committed against separate victims at different times and places, with multiple criminal intents.¹

Wobblers

Specific punishments apply to any person convicted of an offense punishable as a felony or a misdemeanor that is committed for the benefit of a criminal street gang and with the intent to promote criminal conduct by gang members.²  However, the felony enhancement provided by Penal Code Section 186.22(b)(1) cannot be applied to a misdemeanor offense made a felony pursuant to section 186.22(d).³

Murder—Enhancements Under Penal Code section 186.22(b)(1) May Not Apply at Sentencing:  The enhancements provided by Penal Code section 186.22(b)(1) do not apply to crimes “punishable by imprisonment in the state prison for life . . .”⁴ Thus, the ten-year enhancement provided by Penal Code Section 186.22(b)(1)(C) for a violent felony committed for the benefit of the street gang may not apply in some sentencing situations involving the crime of murder.

How Does the Prosecutor Prove The Offense of Gang Enhancements?

To prove that the gang enhancement allegation is true, the prosecutor has to prove the following two facts or elements⁵:

Active Participation In A Criminal Street Gang

• The defendant actively participated⁶ in a criminal street gang⁷
• When the defendant participated in the gang, he/she knew that members of the gang engage in or have engaged in a pattern of criminal gang activity⁸

The following is a list of some of the qualifying crimes the commission of which may be considered as pattern criminal gang activity:

• Penal Code 211 PC – California’s “robbery” law,
• Penal Code 451 PC – California’s arson law 
• Penal Code 487 PC – California’s grand theft law,
• Penal Code 459 – California’s burglary law,
• Penal Code 261 PC – California’s rape law,
• Penal Code 207, 208, 209 PC – kidnapping.

AND

• The defendant willfully⁹ assisted, furthered, or promoted felonious criminal conduct  by members of the gang either by:
• Directly and actively committing a felony offense¹⁰

Example

Jake is a member of a street gang.  Jake and other members of his gang set fire to 5 different cars in a residential building parking lot.  Jake is arrested and charged with arson.  And he is also charged with Penal Code 186.22(a) for participation in a gang which increases his total sentence.

Or

• Aiding and abetting a felony offense¹¹

2. Felony or Misdemeanor Committed for Benefit of Criminal Street Gang

• The defendant willfully⁹ assisted, furthered, or promoted felonious criminal conduct  by members of the gang either by:
• Directly and actively committing a felony offense¹²

The defendant committed or attempted to commit the crime for the benefit of, at the direction of, or in association with a criminal street gang¹³

The defendant intended to assist, further, or promote criminal conduct by gang members.

How Can You fight A Gang Enhancement Charge?

There are several defenses that your attorney can assert on your behalf to fight a gang enhancement charge.  Here are the most common ones:

You Did not Commit The Underlying Felony: 

If you are not charged with an underlying felony, your sentence cannot be enhanced under Penal Code 186.22(b).  

If a prosecutor cannot prove an element of the underlying felony because of insufficient evidence, then you will not receive a sentence enhancement.

You Were Not Acting For The Benefit of the Street Gang:

Under Penal Code section 186.22(b), to be convicted of gang enhancements, the prosecution has to prove that at the time you committed the crime, you were acting for the benefit of the street gang.

If you were acting for your own benefit or the benefit of someone else who is not associated with a street gang, you cannot be charged with gang enhancements.

You Are Not an “Active Participant” in a Gang:

Under Penal Code section 186.22(a), to be convicted of gang enhancements, the prosecution has to prove that you were an “active participant” in the gang.

If your participation was merely passive, then you cannot be charged with the offense.

Imposing The Sentence Would Be Against the “Interests Of Justice”

Although this has not happened that often, once in a while, even after the jury has decided that you should receive a sentence enhancement, the judge still has discretion to determine that enhancing your sentence would be against the “interests of justice” as in a situation where the sentence would be too harsh, unjust, or ineffective.

Related Offenses

• Penal Code 182 PC – California’s “Conspiracy” Law Anyone who actively participates in a criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by the members, is guilty of conspiracy to commit that felony.¹⁴
• Penal Code 32 pc – California’s “accesory after the fact” law: Any person who helps a principal felon avoid, or escape arrest, trial, conviction, or punishment.
• Penal Code 245(a)(1) PC California’s “Assault with a Deadly Weapon” Law:  Any person who assaults another person using a deadly weapon by means of force likely to cause great bodily injury. Including the use of guns, knives, cars as weapons or other objects.
• Penal Code 240 pc – California’s “Assault” Law

Hiring An Attorney

At the Aizman Law Firm our attorneys have significant experience defending clients charged under california penal code 186.22 pc and in consultation with our clients we come up with the most effective defense strategy for your case.  

If you need to speak to an attorney about your case contact us for a free consultation (818) 351-9555.

Footnotes

1. People v. Akins (1997) 56 Cal.App.4th 331, 339–340 [65 Cal.Rptr.2d 338]. [↩]
2. See Penal Code 186.22(d); see also Robert L. v. Superior Court (2003) 30 Cal.4th 894, 909 [135 Cal.Rptr.2d 30, 69 P.3d 951]. [↩]
3. People v. Arroyas (2002) 96 Cal.App.4^th 1439, 1449 [118 Cal.Rptr.2d 380]. [↩]
4. California Penal Code 186.22(b)(5); People v. Lopez (2005) 34 Cal.4th 1002, 1004 [22 Cal.Rptr.3d 869, 103 P.3d 270]. [↩]
5. Elements. Penal Code 186.22(a); People v. Herrera (1999) 70 Cal.App.4^th 1456, 1468 [83 Cal.Rptr.2d 307]. [↩]
6. “Active participation” means involvement with a criminal street gang in a way that is more than passive or in name only.  Active Participation Defined. Penal Code Section 186.22(i); People v. Castenada (2000) 23 Cal.4th 743, 747 [97 Cal.Rptr.2d 906, 3 P.3d 278] [↩]
7. A “criminal street gang” is any ongoing organization, association, or group of three or more persons, whether formal or informal:  1. That has a common name or common identifying sign or symbol; 2. That has, as one or more of its primary activities, the commission of a specific crime California Penal Code Section 186.22(e)(1)–(25), (31)–(33) AND 3. Whose members, whether acting alone or together, engage in or have engaged in a pattern of criminal gang activity.  Criminal Street Gang Defined. California Penal Code Section 186.22(f); see People v. Duran (2002) 97 Cal.App.4th 1448, 1464–1465 [119 Cal.Rptr.2d 272].  In order to qualify as a primary activity, the crime must be one of the group’s chief or principal activities rather than an occasional act committed by one or more persons who happen to be members of the group. [↩]
8. A “pattern of criminal gang activity” means the following: (1) the commission of any combination of two or more crimes from a list of qualifying crimes; (2) the crimes were committed on separate occasions or were personally committed by two or more persons; (3) he most recent crime occurred within three years of one of the earlier crimes; and (4) at least one of those crimes was committed after September 26, 1988.  Pattern of Criminal Gang Activity Defined. Penal Code, Sections 186.22(e), (j); People v. Gardeley (1996) 14 Cal.4th 605, 624–625 [59 Cal.Rptr.2d 356, 927 P.2d 713]; In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1002–1003 [279 Cal.Rptr. 236]. [↩]
9. As the term is used here, a “willful act” is one done willingly or on purpose.  Willful Defined. Pen. Code, § 7(1). [↩] [↩]
10. Applies to Both Perpetrator and Aider and Abettor. People v. Ngoun (2001) 88 Cal.App.4th 432, 436 [105  Cal.Rptr.2d 837]; People v. Castenada (2000) 23 Cal.4th 743, 749–750 [97 Cal.Rptr.2d 906, 3 P.3d 278]. [↩]
11. Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime. [↩]
12. Applies to Both Perpetrator and Aider and Abettor. People v. Ngoun (2001) 88 Cal.App.4th 432, 436 [105  Cal.Rptr.2d 837]; People v. Castenada (2000) 23 Cal.4th 743, 749–750 [97 Cal.Rptr.2d 906, 3 P.3d 278]. [↩]
13. There is no requirement that you be an “active participant” in a gang at the time when you committed the crime.   Active or Current Participation in Gang Not Required.  In re Ramon T. (1997) 57 Cal.App.4th 201, 207 [66 Cal.Rptr.2d 816. [↩]
14. Pen. Code, § 182.5; see Pen. Code, §182 and CALCRIM No. 415, Conspiracy. [↩]