Criminal Street Gangs in California – Penal Code §186.22
California law provides for additional penalties when individuals participate in street gangs in addition to conducting other criminal activity. This results in individuals being involved in street gangs getting harsher penalties than individuals who are not involved in street gangs for committing the exact same crime.
The California legislature enacted the Street Terrorism and Enforcement Act in 1988. Individuals who are found to be involved in a street gang can face serious penalties simply for this involvement or when this involvement is coupled with other criminal activity. The district court attorney can add several gang enhancements if a person is arrested for a crime in which the prosecution alleges that the crime was gang-affiliated. This may be alleged when an officer believes that the individual was involved in a gang by seeing him or her in a certain neighborhood or wearing certain colored clothing. Police officers also collect special cards that contain identifying information about suspected gang members. Often, it does not take much evidence or strength of the evidence to establish that a person is a member of a gang. If a gang member admits to being part of a gang, this is often enough support for a gang enhancement under STEP. This can occur even if the individual was not an actual gang member, such as if a person was saying this in front of another gang member to avoid being targeting by the gang or a juvenile offender boasting.
Participation in a Gang – Penal Code 186.22(a)
Penal Code 186.22(a)1 criminalizes the act of participating in a street gang. Under the STEP Act, a prosecutor must prove the following elements beyond a reasonable doubt to secure a conviction:
Active Participation in a Criminal Street Gang
Active participation in a criminal street gang is the first element that a prosecutor must prove.2 Active participation in a criminal street gang can be found when an individual’s conduct is more than passive. However, the defendant does not have to devote all of his or her time in the gang to be found to be an active participant.3Additionally, the prosecutor does not even have to prove that the individual actually was a member of the street gang.
Knowledge that Gang Members were Engaged in Criminal Gang Activity
Additionally, the prosecution must show that the defendant knew the gang members were engaged in criminal activity. California defines a pattern of criminal gang activity as the following:
- The commission of two or more specified crimes
- Committed on two or more separate occasions or committed by two or more individuals within three years of each other
- With at least one of the crimes being committed after the effective date of the STEP Act
Some of the crimes that are specified include:
- Drive-by shooting
- Certain drug offenses
- Assault with a deadly weapon
Promotion of Felony Criminal Conduct by Gang Members
The final element is that the defendant promoted, assisted or furthered the criminal activity of the gang. This may involve either the direct and active commitment of a California felony or the aiding and abetting of a felony with other gang members.
If a person is found to have participated in gang activity, he or she may be charged with a misdemeanor or a felony. A misdemeanor carries a maximum sentence of one year in jail and a $1,000 fine. A felony charge, the potential penalty is 16 months, two years or three years imprisonment and a fine up to $10,000.
Gang Sentencing Enhancement – Penal Code 186.22(b)
This portion of the law adds an enhancement to the penalty that a person receives for the commission of the underlying felony conviction.4 This enhancement can result in varying penalties of two to fifteen years in prison or 25 years to life in prison, depending on the underlying offense and circumstances surrounding the crime.5
There are a number of defenses that a defendant can raise through his legal counsel to avoid conviction of the crime of participating in gang activity or the sentence enhancement associated with gang involvement. For example, the defendant may argue that he or she did not commit the underlying crime for which the enhancement is being applied. For example, he or she did not commit the robbery or vandalism that is charged.
Another defense is that the prosecution failed to meet its burden of showing that the defendant committed each element of the crime. For example, the prosecution may not have shown that the defendant’s acts were anything beyond passive in nature. This would help show that the prosecution did not prove the defendant was an active participant in a gang. The defense counsel may argue that there was not adequate proof presented by the prosecution that the defendant was actually a gang member. Alternatively, the defendant’s criminal defense lawyer might argue that the defendant was not promoting the gang or aiding or abetting its crimes. Even if the defendant was aiding or abetting a crime, he or she may not have been helping other gang members.
A criminal defense lawyer can assess the charges against a defendant to determine what other possible defenses may apply to the case. He or she can also work on a plea bargain that helps to eliminate or reduce the consequences of any gang-related sentence enhancement.
1 Penal Code Section 186.22(a) – “Any person who actively participates in any 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, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.”
2 Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 1400 – Active Participation in Criminal Street Gang. “To prove that the defendant is guilty of this crime, the People must prove that: 1 The defendant actively participated in a criminal street gang; 2 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 activity; AND 3 The defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang either by: a directly and actively committing a felony offense; OR b aiding and abetting a felony offense.”
3 Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 1400 – Active Participation in Criminal Street Gang. “The People do not have to prove that the defendant devoted all or a substantial part of his/her time or efforts to the gang or that he/she was an actual member of the gang.”
4 California Penal Code Section 186.22(b)(1) – “[A]ny person who is convicted of a felony 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, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted…”
5 California Penal Code Section 186.22(b) – ” (A) Except as provided in subparagraphs (B) and (C), the person shall be punished by an additional term of two, three, or four years at the court s discretion. (B) 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. (C) 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. (2) 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).”