Criminal street gangs represent a serious problem for police departments all across California. While the numbers vary widely, FBI estimates rank Los Angeles and San Bernardino counties as first and third in the nation respectively for numbers of gangs and gang members. With an estimated gang population of more than 68,000 in Los Angeles county alone, as of 2011, it is not hard to see why law enforcement and the district attorney’s office take such a hard stance against suspected gang related criminal behavior. However, as the FBI threat assessment report is quick to point out, numbers do not tell the whole story and there is not necessarily a direct correlation between gang population and rates of criminal activity.
A number of factors can warp the impression given by the numbers alone and it is important to take in a more full perspective before jumping to conclusions. But, whatever the political ramifications of the numbers, gang allegations are perhaps most serious for those defendants facing gang related criminal charges.
Two gang laws?
First passed in 1988 (and later amended by proposition 21 in 2000) California’s STEP Act both criminalizes participation in a gang and enhances the sentence of defendants convicted of committing a crime on behalf of an active gang. While this might seem like a distinction without a difference, the penalties associated with each offense are dramatically different. Let’s look at each independently to better understand this area of law. A gang is defined as an association with three or more people who have as a primary activity the commission of any one or more of a list of 25 specifically enumerated crimes, share a common name, and who show a pattern – meaning 2 or more – of criminal behavior.
Part (a) – gang participation
Under section 186.22(a) of California’s penal code, it is a crime to actively and knowingly participate in the activities of a street gang. A violation of this code section carries a variable penalty ranging from one to three years. Gang participation may be charged in addition to any charge related more directly to the specific offence at issue.
Part (b) – gang enhancement
Under section 186.22(b), a defendant can be charged with, in addition to the above, the crime of furthering the interests of a criminal street gang. Under this part of the code, a defendant can face up to an additional 10 years of jail time for any crimes which are knowingly committed in association with, or for the benefit of, a street gang. In other words, part (b) is a rider, which adds substantially to the sentence of any person convicted of an underlying crime and also convicted under the gang enhancement section.
In addition, there is a firearms provision which, if successfully prosecuted in conjunction with the gang enhancement against any member of a group under consideration, can add up to 25 years to a sentence depending on the underlying nature of the alleged crime. For example, if three members of a gang are each convicted of robbery and also convicted under the gang enhancement provision, and one of the members of the group used a gun to assist in the robbery, additional time can be added to the sentence of each of the three convicted participants even if the other two were unarmed during the robbery.
An allegation is not a conviction
Given the large gang problem facing many parts of California, it is perhaps to be expected that some prosecutors will overzealously pursue gang enhancement or participation charges against criminals for whom such charges are not appropriate. This is why it is critical to remember that a charge is not a conviction. Gang add-ons can very often be fought, and the charges reduced or even dropped entirely with the right legal help. There are a number of defenses to gang charges. The gang enhancement codes require the prosecution to prove a relatively complex set of variables including, for example, that a defendant knew that the crime was for the benefit of a gang, that the gang had a pattern of criminal behavior, that the defendant knew the group was a gang, and that the defendant intended the crime to further the gang’s interests.
In addition, as in every criminal trial, the prosecution must prove every element to the jury beyond a reasonable doubt, the highest burden under the law. If you are facing a gang enhancement, or any other criminal charge, contact a qualified and experienced criminal attorney as soon as possible to ensure that your legal rights are not jeopardized.