When criminals form a gang, they intend to commit a series of crimes and get away with it. Criminal gang activities are usually graver than offenses committed by a single offender. That is why California has very stringent laws against participation in criminal street gangs. Being a street gang member is itself a serious offense that attracts a sentence enhancement for any crimes you are found guilty of committing as a gang. It means that you are likely to receive a harsher punishment if you are suspected of having ties with gang members.

If you face a gang enhancement sentence, we could help have your charges dropped or penalties reduced. You may not have committed the alleged felony or may not have acted that way to benefit any criminal gang. Get in touch with us at the Orange County Criminal Defense Attorney Law Firm and let us plan a strong defense for you.

Legal Definitions

California law against participation in criminal street gangs is provided under Section 186.22 of the state’s Penal Code. The law makes everything about street gangs illegal, including belonging to a gang and all gang activities. The police are always on the lookout for any criminal activity for which criminal gangs could be responsible. If members of a street gang commit a crime, everyone found guilty for committing that crime is likely to receive a sentence enhancement. The sentence enhancement will add the offender prison time on top of the time he/she would have received for the offense.

The primary requirement here is participation in street gang activities. According to the first part of Section 186.22 of California Penal Laws, a member of an illegal street gang can only receive a sentence enhancement if there is proof that he/she participated in the gang activities. This part of the law was adopted and made of the state’s Street Terrorism Enhancement and Prevention Act (STEP), whose primary intention is to provide harsher punishment for gang-related crimes and activities. According to the STEP Law, a person is said to have participated in street gang activities if they did the following:

  • They were active in an illegal street gang.
  • They were aware that the members of that gang participated in a series of illegal gang acts.
  • They willfully promoted, assisted, or furthered felony criminal conduct by the street gang members.

Note that these are the offense elements that the prosecutor must prove in a criminal court for the offender to be found guilty of participating in illegal gang activities. To understand these elements better, let us discuss some of the terms more:

Active Participation

According to the state’s Gang Enhancement Act, a person is said to have been an active member of criminal gang deeds if they took part in those acts actively instead of passively. It means that they were physically present and not there only in name. Note that you will still be considered an active member even though you do not do the following:

  • You do not dedicate all or a significant amount of time to the criminal gang.
  • You are not the head of the illegal gang.
  • You are not an active member of the criminal gang.

Example: James is arrested and charged with California rape, which is a felony offense. The police have always suspected James to have ties with a local criminal street gang. When asked, James admits to his past association with the group. The group has been suspected of committing a series of rape cases that have been reported in the locality. Coincidentally, the nature of the offense committed by James resembles the gang’s pattern. For that reason, James could be found guilty of rape and also for participating in criminal gang activities.

Criminal Street Gangs

This section of the law defines a criminal gang as a group or organization of three or more members that is characterized by the following:

  • It has a shared identity, which could be a name, symbol, or sign.
  • The commission of a long-range of criminal offenses is among its primary
  • In the past, its members have taken part in a pattern of illegal gang acts, alone or with others.

A pattern of illegal gang acts is not easy to prove under the gang enhancement sentencing law. However, it could mean the following:

  • The members have committed more than two offenses from a particular list.
  • The offenses were committed on two separate occasions by more than two people.
  • That the commission of the offenses occurred within three years
  • That, as a minimum, the commission of one of those crimes was after September 1988

Note that the court will not require the prosecutor to demonstrate that the offenses here were gang-related. The list of criminal acts that could establish the pattern of illegal actions in which members of a criminal gang could engage in is very long. It could include such crimes as:

  • Robbery
  • Drug-related offenses such as possession of narcotics for sale, sale, and transportation of controlled drugs, manufacturer of controlled substances, among others
  • Vandalism, though only when it is charged as a felon.
  • Drive-by shooting
  • Murder
  • Assault by the use of a deadly weapon

Willfully Promoted, Assisted, or Furthered Gang Felony Criminal Acts

The prosecutor needs a lot more evidence to demonstrate that the offender promoted, assisted, or furthered criminal acts. The type of evidence admissible in court, in this case, would be:

  • Proof that the defendant actively and directly committed a California felony offense, or
  • Evidence that he/she abetted or aided the commission of a California felony

For a person to be charged and convicted of participating in criminal gang acts under Section 186.22a of California Penal Laws, he/she must have committed, abetted, or aided in the commission of a felony offense with other members of the gang. If he/she had committed the felony offense singlehandedly, they could not be sentenced under the state’s gang enhancement laws.

However, note that a person may have acted alone in the commission of a felony offense but still be subjected to gang enhancement laws, as will be discussed later.

Punishment for Participating in Criminal Street Gang Activities

Participating in an illegal gang is a wobbler offense under California law, which means that it could be convicted as a felony or a misdemeanor. If the offender receives a misdemeanor conviction, the maximum penalty they can receive is imprisonment for one year in jail. The offender could also be given a monetary fine of not more than $1,000.

If, on the other hand, the offender receives a felony conviction, they will be facing a prison term of sixteen months, two or three years. They may also be given a monetary fine of not more than $10,000.

California Sentence Enhancement Under Section 186.22 of the States Penal Code

The second part of Section 186.22 of California Penal Laws is the one that provides the basic sentence enhancement guidelines for criminal gang activities. Under STEP, a person found guilty of a felony crime in California can receive a sentence enhancement if the prosecutor will prove the following facts:

  • That the offender committed or made an effort to commit a crime in association with, for the advantage of, or as per the directive of an illegal street gang
  • That when he/she committed the offense, they intended to help, promote, or further the criminal conduct of the members of that gang.

The offender will also be convicted for the underlying felony offense. It means that the prosecutor will also prove in court the facts of that offense too. Note that there will be no requirement to verify that the offender was an active gang member when he/she committed the crime.

Example: Three friends, Paul, Mark, and Tony, are relaxing by the roadside one afternoon. Tony and Mark are members of a local street gang, but Paul is not. Paul throws stones at a passing police vehicle wherein there are two officers on duty. The officers stop and try to arrest the three, but they fight back. After their arrest, the three will be charged with battery on a protected officer and get a gang enhancement sentence. Even though Paul is not an illegal street gang member, he will also receive a sentence enhancement for assisting his friends, gang members to commit the underlying felony offense.

The question is, how much of the sentence enhancement does an offender get for participating in criminal gang activities? The nature of the underlying offense mainly determines the sentence length.

Generally, any person sentenced to a felony offense, and the STEP Law applies to his/her case. They will be added an extra prison time of two, three, or four years. The additional term should be served consecutively with the penalty they will be issued for the felony conviction. This is only a general sentencing guide, but there are exceptions.

Serious Felony

If the original felony offense is categorized under serious California felonies, the offender will be given an additional five years to their initial prison term. There are a total of forty-two crimes in California that are categorized under severe felonies. They include:

  • Drug-related offenses
  • Shooting at an occupied car/inhabited dwelling
  • Assault by an inmate with a fatal weapon
  • Assault of a protected officer with a deadly weapon
  • Criminal threats

Violent Felonies

The law provides that if the original felony is categorized under California violent felonies, and the street gang sentence enhancement law applies, the offender will be given an additional ten years to their initial prison term. The number of California violent felonies is high and may include:

  • Murder
  • Any offense in which the victim suffers great physical injury
  • Crimes covered under California mayhem laws of Penal Code Section 203 and Section 205
  • Specific types of sex offenses

Specific Felony Offenses

Again, there are particular felonies in which the state’s gang sentence enhancement law applies. When a person is convicted for these felonies and proof that the offense was committed to promote, assist, or further criminal gang activities, they will face a much longer additional sentence. The specific felonies include:

  • California home invasion robbery
  • Carjacking
  • Felony shooting at an occupied vehicle or inhabited dwelling
  • Drive-by shooting, which results in significant physical injury or death

For these particular felonies, the offender will be given an added fifteen years to life in state prison, to be served consecutively with the prison term given for the underlying offense.

If, on the other hand, the offender is convicted of the felonies below, he/she will face an additional seven years to their original prison term:

  • Extortion by fear or force
  • Dissuading witness

Finally, if the primary felony is punished by life in prison, the offender will face an additional life term for their involvement in criminal gang activities. In this case, the offender will not receive credit towards their eligibility to state parole until they have served at least fifteen years of their sentence.

Gang Sentence Enhancement for Misdemeanors

The fourth part of California Gang Sentence Enhancement Law Section 186.22 of the state’s Penal Code provides more ways for offenders involved in street gang activities to receive sentence enhancement for engaging in other crimes. The law lets the prosecutor convert a misdemeanor offense into a felon if the offense is committed under the following circumstance:

  • At the guidance of, in association with, or to benefit a criminal gang.
  • With a specific intention to assist, further, or promote the conduct of the gang members

It means that in the place of the offender getting the standard sentence for the misdemeanor of a maximum of one year in jail, they can face an additional one, two, or three years in prison. When this happens, the prosecutor will not be allowed by law to add a sentence enhancement under California Penal Code Section 186.22b. It is because the penalty will then be too harsh for the offense the offender committed.

Other Sentence Enhancement Considerations

There are other instances in which an offender can receive a gang sentence enhancement in California. They include:

If the Offense Was Committed in or Near a School Precinct

Still, under STEP Law, judges will be more concerned if the crime was committed in or near a school precinct. I could have been on the property of a school or within a thousand feet of a school. Note that this could either be a private or public school. The other concern would be whether or not the offense occurred during the time the school was in sessions or when the minors were out on the school grounds.

When a serious offense is committed near or in a school precinct, it is an aggravating factor that could cause the judge to consider giving you a longer prison sentence.

Interest of Justice

It is worth noting that the judge usually has total discretion in determining the right sentence enhancement to give, depending on the offense’s nature. He/she could even strike the sentence enhancement if the court feels that doing so would serve the interest of justice. Thus, a competent criminal defense attorney can take advantage of that provision to convince the judge to do it in favor of his/her client.

Note that this only happens in particular situations. However, if you are working with an experienced criminal defense lawyer, he/she could be in a position to persuade the jury that your case is also unusual.

Multiple Gang Sentence Enhancements

As a general rule, the law only lets one sentence enhancement per offense for every offender, even if the nature of their crime requires several enhancements because of multiple charges. There are exceptions, though, in cases where the defendant commits several criminal offenses that are characterized by the following:

  • An offense/offenses involving multiple victims
  • Several offenses are separated by distance and time but by the same offender.

In that case, the offender is likely to face charges for separate crimes, in which gang enhancement law may apply.

Example: A local gang commits a series of robberies in one neighborhood. If caught, the members are likely to face separate counts of robberies since they involve different victims, places and are separated by time. On top of that, they will face a separate sentence enhancement for every robbery committed if it is proven that the robberies were committed to benefit their street gang.

Possible Defense Strategies to Use to Challenge California Gang Enhancement

If you face felony charges in California, the last thing you need is an additional sentence. An additional sentence means that you will be serving time behind bars for a much longer time. That is why you need the best criminal defense services to challenge the STEP Act charges you face. A skilled and experienced criminal defense lawyer has several defense strategies he/she can use to ensure that you are not getting more time than you deserve. Some of these strategies are:

You Didn’t Commit the Underlying Felony

One way in which your attorney can ensure that you will not receive a sentence enhancement is by fighting the underlying felony charges. If there is not sufficient proof that you committed the underlying offense, you will not get an additional sentence. This strategy works most of the time, especially if the prosecutor cannot prove all the alleged crime elements. If the prosecutor cannot prove your involvement in the commission of the offense, then all your charges will be dropped.

You Aren’t an Active Member

If your attorney cannot challenge the underlying charges, he/she can try to challenge your involvement in street gang activities. Remember that the first part of the STEP Act requires one to be an active member of the criminal gang to receive a gang enhancement charge. The challenge for the prosecutor comes in proving your active participation in gang activities. If he/she is unable to verify that beyond a reasonable doubt, you may end up only facing charges for the underlying offense.

You Didn’t Act For the Advantage of the Street Gang

The second part of the STEP Act requires an offender to have acted the way they did to benefit a criminal gang. Therefore, if you have been found guilty of the underlying offense, the prosecutor’s challenge will be to prove that your actions were in any way benefitting the criminal gang. If he/she does not have sufficient proof, your attorney can take advantage of that to convince the judge to drop your gang enhancement charges.

Note that a person can be a member of an illegal street gang but still not commit an offense for its benefits.

Illegal or Unfair Charge

Certain laws in California are very complex and can easily be misinterpreted even by people who have been in the legal field for years. They may include gang laws. It means that a person can be charged illegally for participating in criminal gang activities or acting for a criminal gang’s advantage. An experienced criminal attorney will have studied these laws deeply to know how to challenge the prosecutor if an illegal or unfair charge is brought forth against their client. If indeed, you are facing unfair or unlawful accusations, the judge will have to drop the charges and could only convict you of the underlying charge.

Find an Orange County Criminal Defense Attorney Law Firm Near Me

Gang Enhancement Charges will lead to a longer prison term and sometimes life imprisonment. Thus, you need the best legal defense team to fight them and enjoy your freedom or the prison term you genuinely deserve. At Orange County Criminal Defense Attorney Law Firm, we have a team of experienced criminal defense lawyers with extensive knowledge and ability to handle even the most complex legal cases. Therefore, if you are in Orange County, CA, call us at 714-740-7848 and take advantage of our competitiveness to improve the chances of the best outcome for your case.