California's Gang Enhancement Law - Penal Code 186.22
California Penal Code 186.22 PC states that any person who willfully participates in gang activities, or joins other members, while carrying out a crime could be found in violation of gang enhancement laws.
This sentencing enhancement adds additional time to a prison sentence for any crimes that were committed in furtherance of gang activity.
Penal Code 182.22 PC describes a criminal street gang as:
- Any ongoing organization of 3 or more people
- Have a common name, or identifying marks/symbols
- Members who engage in specific criminal activity
In other words, a criminal street gang is any group of 3 or more people with a common name who participate in a pattern of committing a variety of crimes.
Penal Code 186.22 PC, known as Street Terrorism Enforcement and Prevention (STEP) Act, is California's street gang enhancement law.
It gives prosecutors a sentencing enhancement if they can prove your underlying criminal activity was part of street gang participation.
What Must a Prosecutor Prove for a Gang Enhancement?
Prosecutors must be able to prove, beyond reasonable doubt, that you:
- Actively participated in a criminal street gang
- Knew members engaged in a pattern of gang activity
- Willfully assisted with their criminal acts
The crucial factor of “active participation” means you took part in gang activity in more than a passive manner.
You don't have to be a gang leader, rather just a gang member who actuary participates in criminal acts some of the time.
Example of active gang activity
Let's say law enforcement arrests someone for committing a PC 211 felony robbery.
One of the officers believes they recognize the suspect from previous encounters with known gang members.
The suspect claims he is no longer active in a gang, but will occasionally hang out with some of them
The felony robbery he was just arrested for is similar to prior robberies committed by the same criminal street gang he hangs out with.
Due to the fact the suspect admitted to hanging out with the gang, and the similar pattern of robberies, he could be deemed actively participating in that gang.
What is “Pattern of Criminal Activity” Mean Under PC 182.22?
As stated, Penal Code 186.22 PC describes a criminal street gang as any group or organization that has 3 or more people, with a common name or symbol, where their primary activity is to commit certain crimes, in a pattern of criminal activity.
So, what is the definition of a “pattern of criminal activity?” It means:
- Commit two or more crimes on the list below, and
- On two or more separate occasions by two or more people
- Within a three-year period of each other
- With at least one crime committed after September 1988, and
- Prosecutor must be able to prove the crimes were gang related
What are the List of Crimes That Classify an Organization as a Gang?
There is a list of specific California offenses that can establish a pattern of criminal gang activity. The list includes “serious,” “violent,” and specific felony crimes, including:
- Penal Code 211 PC – robbery
- Penal Code 459 PC - burglary
- Penal Code 245(a)(1) PC – assault with deadly weapon
- Penal Code 245(a)(2) PC – assault with a firearm
- Penal Code 246 PC – shooting at inhabited dwelling or car
- Penal Code 422 PC – criminal threats
- Penal Code 451 PC – arson
- Penal Code 187 PC – murder
- Penal Code 205 PC – mayhem
- Penal Code 206 PC - torture
- Penal Code 213 PC – home invasion
- Penal Code 215 PC – carjacking
- Penal Code 136.2 PC – witness intimidation
- Penal Code 518 PC – extortion
- Penal Code 487 PC – grand theft
- Penal Code 487(d)(1) – grand theft auto
- Penal Code 207 PC – kidnapping
- Penal Code 261 PC – rape
- Penal Code 484 PC – credit card theft
- Penal Code 594 PC – felony vandalism
- Possession of firearms
- Obtaining fake identification from DMV
- Drug trafficking, sales, and distribution
- Any felony crime that inflicts a great bodily injury
- Certain California sex crimes
In order to prove you "promoted, assisted, or furthered” a felony crime by a gang, the prosecutor must show directly you committed a felony crime, or aided and abetted.
In order to be convicted of participating in a gang, the prosecutor has to prove you actually committed, or aided and abetted, a felony crime with other gang members.
What are the Penalties for PC 186.22 Gang Enhancement?
Under California Penal Code 186.22(a) PC, participation in a gang is a “wobbler,” meaning the case can be filed as a misdemeanor or a felony case.
If you are convicted of a misdemeanor offense, the penalties include:
- Up to 1 year in county jail
- A fine up to $1,000
If convicted gang participation as a felony, the penalties include:
- 16 months, 2 or 3 years in a California state prison
- A fine up to $10,000.
Under Penal Code Section 186.22(b), you could receive an enhanced sentence if convicted of a crime and the prosecutor can prove the elements of an enhancement, including:
- You committed, or attempted to commit a crime that was to benefit the gang, directed from the gang, or was associated with the gang
- When you committed the crime, your intent was to assist, promote, or further the criminal conduct by gang members
Under California law, it's NOT required you are an active gang member when the crime was committed in order to receive an enhanced sentence.
How Much Will a Gang Enhancement Increase a Sentence?
The amount of time a gang enhancement will increase a prison sentence depends on the type underlying crime you were convicted of.
If misdemeanor violation, you could face:
- Up to 1 year, but a minimum of 180 days in jail
If a felony case, you will receive an enhancement sentence in addition to punishment for the underlying crime of:
- 2, 3, or 4 years in California state prison
If it's classified as serious felony case defined under California Penal Code 1192.7(c) PC, the additional time in prison could be 5 years.
For a violent felony case, which is defined under California Penal Code 667.5(c) PC, the additional time in state prison could be 10 years.
Seven Years to Life
Other certain felony cases could result in an additional 7 years to life in prison, including:
- Penal Code 518 PC - extortion by force or fear, and
- Penal Code 136.1 PC - threatening a witness
Fifteen Years to Life
For other felony cases, the additional time in state prison could be 15 years, including:
- Penal Code 215 PC – carjacking
- Penal Code 213 PC – home invasion robbery
- Penal Code 12022.55 PC - drive by shooting causing death or serious bodily injury
There are also other sentencing considerations that could be examined by the court, including whether the offense occurred within a school zone.
How Can I Fight a PC 186.22 Gang Enhancement?
Our experienced Los Angeles criminal defense lawyers can use a variety of defenses to challenge alleged gang participation or sentencing enhancements, including:
- No gang affiliation – The prosecutor must prove you have or had some type of gang affiliation. We might be able to challenge this allegation by showing that while you might know other gang members, you never participated in that criminal activity.
- You weren't acting for the benefit of a gang - In order to receive a PC 186.22(b) gang sentencing enhancement under, the prosecutor must prove you acted for the benefit of a gang. We might be able to argue your conviction was not related to gang activity.
- Fight the underlying felony crime – You can't receive a gang sentencing enhancement unless you're convicted of the underlying felony crime. Depending on the case, we might be able to have the charges reduced to a misdemeanor, or get the case dropped using different legal strategies.
Based on the facts of the case, there are also other effective legal defenses against a PC 186.22 gang enhancement.
Contact Eisner Gorin LLP for a Consultation
If you were arrested and charged with a crime that could include a gang sentencing enhancement, call our Los Angeles criminal defense lawyers to review the details.
We are former Los Angeles County Prosecutors and know from experience what exactly a they must prove in order seek a California Penal Code 186.22 PC gang sentencing enhancement.
Eisner Gorin LLP is a top-ranked criminal defense law firm located at 1875 Century Park E #705, Los Angeles, CA 90067.
Our main office is next to the Van Nuys Courthouse at 14401 Sylvan St #112 Van Nuys, CA 91401.
Contact our office for an immediate consultation at (877) 781-1570.