Los Angeles Criminal Law Blog

Gang Allegation Penal Code Section 186.22 Dismissed on Appeal

Posted on: November 29, 2008 at 3 p.m.

Under California law, the state and police use the gang allegation aggressively in prosecuting cases of robbery, murder, assault with a deadly weapon, and other serious felony crimes. Penal Code Section 186.22 is the legal vehicle to add substantial prison time, even for participants that had just collateral involvement. The legislature's viewpoint is that if the suspect is a gang member, he must be punished just as severely as the shooter, because he is part of the same criminal organization. Needless to say, once juries hear about gang membership and the gang's prior activities, the jurors have a hard time hearing about defense evidence of innocence or guilt by association.

Recently an appellate court dealt with the issue of what constitutes a "criminal street gang" in violation of Penal Code Section 186.22. The court concluded that a finding that a group to which a defendant belongs is a "criminal street gang" cannot be based solely on the relationship between that group and a larger criminal organization.

The justices overturned the special-circumstance finding that a convicted murderer killed his victim as part of gang activity. The court said there was enough evidence to prove that defendant's group, the STP, was a criminal street gang, but that jurors may have

Tagged as: california criminal laws, gang allegations

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