California’s PEN § 186.22 establishes gang enhancement, which drastically adds to the time a convict stays in prison for a felony offense committed in furtherance of a criminal gang. The statute grants judges the discretion to impose particularly severe sentences, including life imprisonment, on individuals who commit crimes for the benefit or furtherance of gang activities.
It is not uncommon for individuals to be wrongfully accused of being members of a street gang or engaging in crimes or activities associated with criminal gangs. If you find yourself in this position, you need an experienced violent crimes defense attorney to defend you. At CCLG: Los Angeles Criminal Attorney, we understand that gang enhancement can increase your confinement by at least ten years. Our criminal defense attorneys will safeguard your rights, explain your legal options, and identify mitigating factors to help reduce the enhancement to a few years or eliminate it to protect your future.
Gang Enhancement Overview
PEN 186.22 provides that an enhancement adds the time a person spends in prison to a felony sentence if the crime was committed by the defendant for the benefit of, at the direction of, or in affiliation with a gang. Gang enhancement is not a separate crime but an additional sentencing factor for a crime.
So, this is how it happens: the prosecutor charges you with a felony like robbery, and then they allege that the defendant committed the felony in furtherance of gang activity. After the prosecutor secures a guilty verdict for the felony offense, the judge determines during a separate trial whether the allegations of gang involvement are factual, contingent on the evidence presented in court. If the accusation can be substantiated, the court imposes additional and subsequent prison time over the baseline felony.
Under PEN 186.22, it is illegal to take part in a gang activity by either participating in the gang while furthering a felony or carrying out an offense for the gain of a gang. Besides, the statute provides the authorities with a way of charging any individual who willingly engages in criminal gang activities or joins gang members during the commission of a crime. Gang enhancement has two subsections.
PEN 186.22 (a) as a Substantive or Standalone Crime
The first is PEN 186.22 (a), which creates a standalone crime. The statute criminalizes active involvement in gang activities. It makes it a wobbler for any person to participate in a gang. When accused of a violation of the subsection, the prosecutor can charge you with a felony or misdemeanor offense based on the case’s facts. An example of this violation is gang members casing in preparation for a burglary or being on the lookout as others burglarize. When charged under this subsection, the key elements that the prosecutor must prove to obtain a guilty verdict are:
- You are an active street gang member
- You were aware or ought to have known you were participating in gang activity with a behavior pattern
- You assisted or promoted activities conducted by the gang members
Let us discuss these elements further:
Active Participation Definition
First, the prosecutor must show active participation, meaning you must have actively engaged in the gang’s activities more than passively. Still, it does not require full-time devotion or a leadership role.
Criminal or Street Gang Definition
A gang enhancement charge under subsection 186.22 a is based on the existence of a street gang. Therefore, when charging you with the crime, the prosecutor should prove that the group you are alleged to be a member of meets the definition of a gang.
Per PEN 186.22, a criminal gang is a group of at least three persons operating as a running, organized entity that satisfies a particular legal criterion. The following are some of the characteristics of a gang:
- The group has a prevalent name or identifying symbol
- The group must have committed at least one of the violations listed under the gang enhancement laws, and the crime should be one of the gang’s primary activities. The crimes include assault with a deadly weapon, firing at occupied structures, drug crimes, or robbery.
- The group members must have been collective participants in the gang’s criminal behavior pattern.
Proving the Gang’s Behavior Pattern and Primary Crimes
Another aspect of gang enhancement as a crime under subsection (a) is that the prosecutor must establish the existence of a behavior pattern by identifying at least two separate offenses listed under the statute that were committed by at least two individuals within a 36-month period. The prosecutor must prove that the crimes were committed in two separate instances and occurred within 36 months.
The evidence the prosecutor relies on includes court documents from previous verdicts and testimony from expert witnesses proving that the alleged crimes were committed in furtherance or for the benefit of a gang.
Also, it must be proven that the crimes were committed with the motive or plan to promote or facilitate gang activities. Proving intent can be challenging for the prosecutor, as they rely on circumstantial evidence, creating room for you to contest the evidence submitted. Your attorney can argue that just because you committed an offense, it does not necessarily mean you were doing it for the benefit of a gang. You could have been acting with selfish intent, like to finance your drug addiction or out of anger.
A guilty verdict for a misdemeanor violation attracts at most twelve months of jail incarceration and a monetary court fine not exceeding $1,000, while a felony conviction attracts 16, 24, or 36 months of jail confinement and no more than $10,000 in court-imposed monetary fines.
Sentencing Enhancement Under PEN 186.22 (b)
Meanwhile, subsection 186.22(b) provides for a penalty enhancement for other felonies committed for the benefit of a street gang. The subsection increases the sentence for individuals convicted of committing felonies for the benefit of, in relation to, or furtherance of a criminal gang by up to life imprisonment.
Under the gang sentencing enhancement in California PEN 186.22(b), those convicted of a criminal offense can face a significantly greater sentence when the prosecution can prove the following elements:
- The defendant committed the offense for the gain of a street gang
- The defendant intended to help or further criminal conduct by gang members
Under this subsection, the law does not require the prosecutor to prove active participation in a gang. Simple affiliation to a group is enough to secure you a sentence enhancement after a conviction for the baseline offense. The prosecutor only needs to show you benefited from the criminal group’s activities.
Furthermore, the prosecutor should first find you guilty of the baseline or underlying offense before sentence enhancement. The penalty enhancement is measured in years and hinges on the case’s facts and the statutory subsection you have been convicted under. The sentence enhancement is as follows:
- Four years of incarceration for a generic felony
- Five additional years for a serious felony
- Ten additional and consecutive years for a violent felony
- An additional 15 years to life imprisonment for specific felonies listed under this statutory subsection, like committing a robbery during a home invasion.
If you are already serving a life imprisonment sentence, you will not qualify for parole credit until you have served at least 15 years of your sentence.
With the period of enhancement varying based on the crime and other facts, it is challenging to know the precise sentence enhancement you will face. Therefore, consult an experienced criminal attorney. Besides, you risk sentence enhancement even if you have been sentenced to probation. When you are sentenced to probation, and the court confirms that the gang involvement allegations are factual, you will face at least three months in jail.
Procedural Instruments
The prosecutor must demonstrate every aspect of gang enhancement beyond a reasonable doubt to secure a conviction or sentence enhancement. In your defense, your criminal attorney can utilize various procedural instruments like the motion to sever to compel the court to separate the gang enhancement from the baseline offense in what is known as bifurcation.
In the motion to sever, your criminal attorney requests that the court, through a bench or jury trial, issue a verdict before listening to the aggravating factors of gang involvement. If you are found guilty, a separate trial is set to rule on the gang enhancement accusations. Separation of the two trials means that the judge will issue a verdict on the baseline offense based on the facts or evidence supporting the charges, rather than the evidence of gang involvement.
After January 1, 2022, when the Assembly Bill (AB) 333 took effect, gang enhancement was served immediately after sentencing for the baseline crime per PEN 1109. However, the bifurcation right is not retroactive or does not take effect right after sentencing in many cases.
Types of Evidence Used to Prove Gang Enhancement
Proving gang enhancement requires the use of various forms of proof. When proving intent and the defendant’s involvement with a criminal gang, prosecutors primarily use circumstantial evidence. The various types of evidence used include:
- Witness Statements
Testimony from gang experts, like the police, is crucial in proving the charges or claims of gang enhancement. The prosecutor can have law enforcers testify about the culture, identity symbols, and behavior patterns to prove that a defendant is a gang member. Nevertheless, the testimony by the officers is usually considered the personal opinion or feeling of the testifying officer and can be challenged by your criminal attorney. The attorney can assert that the testimony is based on the officer’s taste, opinion, or feelings, and the jury does not require it, as they are capable of forming their own opinions.
Similarly, the prosecutor can use jailhouse informants to gain crucial testimony in the case in exchange for preferential treatment while incarcerated. Cooperating co-accused persons can also turn against their co-accused in exchange for a lesser sentence.
The credibility of the witness testimony can easily be contested because the witness may have a motivation to lie. Your attorney can argue that the testimony is not credible because the witness was promised preferential treatment, lighter penalties, or any other arrangement by the prosecutor. You can even bring up the witness’s criminal history to challenge the reliability of their statement.
- Physical Indicators
Physical evidence is another type of evidence utilized to prove gang enhancement. Prosecutors can use tattoos, dressing style, graffiti, and symbols to establish links to a gang. For instance, the prosecutor can argue that the signs, numbers, or colors used in your tattoo indicate affiliation with a particular gang. A specific color or style of clothing could also be used to prove gang membership.
Unfortunately, some of these indicators are deceptive. The choice of tattoo design or color is personal or cultural and does not necessarily make you a gang member.
An experienced attorney will find other reasons for the physical indicators the prosecutor is using to prove gang enhancement, proving that the physical evidence is not a good enough reason to believe one is in a gang.
- Digital Evidence
In this digital era, prosecutors heavily depend on digital proof from social media, GPS information, pictures, and text messages to build cases against individuals alleged to be gang members or participating in gang activity. The prosecutor could use group photographs or text message conversations with gang members to prove affiliation. However, this evidence is not reliable due to the numerous errors police can make when creating a context for the photos or texts. They can misinterpret genuine relationships and friendships as gang affiliation. Your attorney can explain the actual contest of the digital evidence or produce additional information to contest the prosecutor’s assertion.
Defending Against Gang Enhancement
Apart from a lengthy prison sentence, gang enhancement as a substantive crime or sentence enhancement can have several collateral consequences. If you are a non-citizen, a guilty verdict for the offense can result in removal or inadmissibility. Additionally, you may face challenges in finding a job, an apartment, gaining college admission, or obtaining a professional license. Therefore, you must fight the allegations aggressively to avoid a conviction, for a reduced sentence, or to prevent the sentence enhancement. The standard legal defenses you can apply in your case, contingent on the facts, include:
You are not an Active Gang Member
When charged under § 186.22 (a), you can prevent a conviction by arguing that you are not an active crime gang member. An active member is one who willingly participates in or encourages gang activities. Casual association, like being friends, neighbors, or associating with alleged gang members, does not make you an active member. Your attorney should highlight the difference between passive and active participation to show that you are not actively in a gang.
Besides, you can argue that the group you associate with does not meet the legal definition of a gang. The prosecutors must demonstrate that the said group satisfies the definition of a criminal gang as per PEN § 186.22 to obtain a conviction for gang enhancement successfully. The act defines a criminal gang in part (f) to mean an organized, formal, or informal group of three or more persons that is active and has its primary activity being the perpetration of at least one of the criminal acts listed under Penal Code § 186.22. The group must have a common identifying sign, such as a name, tattoo, or symbol, and its members collectively engage in committing a particular form of criminal gang activity.
Therefore, your attorney can contest the allegations by arguing that the group does not satisfy the criteria set by the law on what constitutes a criminal gang. As most prosecutors rely heavily on circumstantial evidence to link you to a particular criminal gang, an experienced defense attorney will raise questions about the circumstantial evidence relied on by the prosecutors, such as being seen with an alleged gang member or wearing certain clothes, as not being conclusive evidence that you are a member of a criminal gang. Doing this thus renders the circumstantial evidence adduced by the prosecutors insufficient to meet the required criminal standard of proof, which is beyond a reasonable doubt.
Refuting the Specific Intent Requirement
The prosecutors must tell you that you engaged in the violation with the sole intent of not individually benefiting but for the benefit of or to promote the activities of the gang. An experienced defense attorney will assert that the offense you committed was solely for selfish reasons and that you had no gang connection while committing the crime. Successfully showing that you acted for personal benefits could save you from a severe additional sentence.
Questioning Witness Testimony
The prosecution hugely relies on witness testimonies to prove your involvement with a criminal gang. Questioning the witnesses and their testimonies to prove the unreliability of their evidence by the court in your conviction is another defense strategy. Witnesses are prone to intimidation, coercion, or being biased due to their gang affiliations or fear of revenge. Having a defense attorney who can discredit and raise concerns about the witnesses’ reliability will lead to the collapse of the prosecutor’s case due to a failure to discharge the required burden of proof.
Lack of a Baseline Crime
You can only face sentence enhancement under PEN 186.22(b) if you have committed another felony offense. Therefore, if you can prove your innocence in the trial for the underlying crime, there will be no trial for gang sentence enhancement. Most prosecutors rely on subjective gang expert testimony, making it easier to contest.
Having an experienced defense attorney by your side is an advantage because they will challenge the evidence that the prosecutor will tender to prove your guilt. As the defense team, they will seek to establish that the prosecutor’s evidence fails to meet the required standard of proof, which is, in criminal cases, beyond a reasonable doubt, by casting doubt on the evidence presented by the prosecution. Therefore, if successful, your charges will be dismissed because you broke no law and are thus not subject to the gang enhancement sentencing.
Negotiating a Charge or Sentence Reduction
Even though the goal of the defense is to have the charges dismissed or the defendant acquitted, sometimes the charge has merit. Having an experienced defense attorney by your side will be advantageous because they will be able to negotiate for a gang enhancement dismissal. An experienced defense attorney will explore all possible avenues for plea deals, including reducing the charges to non-gang-related offenses. This means that when your defense attorney successfully negotiates the removal of the gang enhancement conviction, your penalties will be significantly reduced, often resulting in you not facing the mandatory additional years prescribed by the law.
Again, gang enhancement only applies to felonies. Therefore, if your offense is a wobbler and you convince the court to reduce it to a misdemeanor, a conviction will not be subject to gang enhancement, meaning you will avoid the additional penalties.
Contravention of your Rights
The DA must adduce evidence to support their charge of criminal gang participation. To support the charge successfully, the law enforcement will be required to investigate you and eventually arrest you. The law enforcement will search and seize any information or evidence that’s likely to help them prove the charge they have preferred against you.
An experienced defense attorney will carefully review whether law enforcement violated your constitutional rights during the investigation or arrest. Whether the police subjected you as the defendant to an unlawful search or seizure, or law enforcement used duress and coercion to get an incriminating statement from you, or the police wrongly characterized you as a gang member based on racial profiling or other unsubstantiated biases, your attorney will raise questions on possible constitutional rights violations and thus be able to weaken the prosecution’s case.
Additionally, an experienced criminal attorney will file motions to suppress evidence by praying that the prosecutor’s ability to introduce certain types of evidence be limited. For example, when the police conduct an illegal search or seizure, the defense will file a motion to suppress the evidence obtained as a result, which can weaken the prosecution’s case and even lead to the dismissal of charges related to gang activities.
Find a Competent Criminal Attorney Near Me
Gang enhancement charges carry severe penalties, including a mandatory additional sentence of 1 to 10 years upon conviction. However, having an experienced defense attorney by your side would make all the difference in your case. At CCLG: Los Angeles Criminal Attorney, we will help you develop a perfect defense strategy by challenging and questioning all the evidence that the prosecution presents to obtain your conviction or negotiating on your behalf for the dropping of the gang enhancement charges as part of your plea deal. Call us today at 323-922-3418 to increase the chances of a favorable ruling.
