Gang violence has become an epidemic in almost every society today. This epidemic has affected California in the past, and as a way to solve the problem, the state enacted the Street Terrorism Enforcement and Prevention Act. With this statute, any person who is involved in a felony crime and it is determined that he or she is a gang member or was helping a gang engaged in violent crimes, then he or she will be charged with a gang enhancement. A conviction for this offense might double or triple your sentence. The problem is that although the STEP Act has helped reduce gang violence, innocent people are being convicted because of race, mistaken identity, obsessive prosecutors, shoddy investigations, and fabricated evidence. It is the reason why you will need an experienced and aggressive criminal lawyer. At the Los Angeles Criminal Lawyer, we are determined to show the court the truth regarding the accusations and guide you to the end. This article will address some of the following issues to help you understand gang enhancement.
Overview of Gang Enhancement
PC 186.22 is part of the STEP Act and has two major components, which are the crime of participating in a street gang under PC 186.22a and gang sentencing enhancement under PC 186.22b. PC 186.22b provides for additional punishment to an initial crime imposed on persons who are involved in a crime for the benefit or in affiliation with a criminal gang. According to this law, if you commit a felony for the benefit of or to promote a group, you would face a mandatory prison sentence on top and consecutive to the sentencing you received for the causal felony. PC 186.22a, on the other hand, makes it unlawful to take part in a street gang and help in any felony crime by the gang members.
Elements the Prosecution Must Prove Under PC 186.22a
To prove that you are guilty of this offense, the prosecutor must prove the following elements:
You Actively Participated in a Criminal Gang
When proving this element, the prosecution will try to show the court that the way you participated in the gang was more mere passive. It won’t count whether you participated in the bunch of criminals only for some time, whether you were the gang leader or you seized being an active member of the gang, you will be convicted.
You Were Aware Members of the Gang Engaged in a Pattern or Organized Criminal Activities
A criminal gang is defined as per subsection 186.22f as a group of 3 or more individuals with a collective name or identity sign, whose one of the primary activities is ordering any of California criminal crimes and whose members have taken part in organized illegal gang activity. A pattern of gang activities in this case means:
- The commission of two or above crimes listed under California law
- On two or more separate occasions or by two or more distinct individuals
- Within thirty-six months of each other
- With at least one of the crimes committed after September 1988
The crimes defined in these gang activities include robbery, murder, assault with a deadly weapon, and drug offenses. Considering this, you might think that the prosecution will have a hard time proving this element. The truth is that the prosecutor doesn’t need to show that any of these was gang-related.
You Promoted, Furthered or Assisted Gang Activity
To prove this element, the prosecuting party must demonstrate that you directly committed or helped gang members commit a felony. Keep in mind that if you engaged in crime alone without being aided by gang members, you could not be convicted under this subsection. However, you can still be convicted for commission of a felony on your own under PC 186.22b.
Elements the Prosecutor Must Prove Under PC 186.22b
As mentioned earlier, under this section of STEP Act, you will receive an enhanced sentence if you are found guilty of a crime, and the prosecutor can prove the following elements:
- You commissioned or attempted to commit a crime for the advantage of, or by a directive or in association with a criminal gang.
- During the time of engaging in the felony conduct, you planned to promote, further, or aid criminal activities by gang members.
Whatever the underlying crime you are being charged with, the prosecution attorney must prove the elements of the crime first, and to enhance the sentence, he or she must prove the two elements under PC 186.22b.
Remember, under this statute, you can be convicted without necessarily being an active member of a criminal street gang.
Penalties for PC 186.22a
If the prosecutor proves all the elements of this crime, you will face severe penalties. And because the offense is a wobbler, if you are convicted of a misdemeanor PC 186.22a, the penalties will be as follows:
- As much as 364 days in jail
- No more than $1000 in court fines
Felony PC186.22a conviction, on the other hand, carries the following penalties:
- Incarceration for sixteen, twenty-four or thirty-six months
- Court fines not exceeding $10,000
Penalties for PC 186.22a
The penalties you face for gang enhancement depends on the underlying crime. If you are charged with the following offenses and convicted, and on top of it you are discovered to have violated PC 186.22b you will be subject to the following penalties:
- Generic Felonies
If the prosecution can prove the two elements of gang enhancement after you have been convicted of a generic felony, the punishment will be additional and consecutive twenty-four, thirty-six, or forty-eight months’ state incarceration.
- Serious Felonies
If you have been charged and convicted of a serious felony in California, plus the prosecutor succeeds in proving elements of PC 186.22b, you will get sixty months’ prison sentence on top of your initial sentence. Some of the severe felonies in California, including but not limited to:
- PC 246
- Specific drug crimes
- Assault with a lethal weapon by a prison inmate
- PC 245(a)(1)
- PC 245(a)(2)
- PC 242
- Violent Felonies
In the event, you have been convicted of a violent felony, and the prosecutor goes ahead to prove that you violated PC 186.22b, then you will get a further prison sentence of one hundred and twenty months. There are at least twenty violent felonies in California, and some of them include:
- PC 187
- PC 203 & 205
Any time you are convicted under these statutes and others that define violent felonies, the sentence you get will be topped by ten years’ incarceration if it is proved you violated PC 186.22b.
- Specific Felonies
If you are sentenced for violating PC 213, PC 215, PC 246, and PC 12022.55, and your purpose for the violation was to aid or promote criminal gang activities; you will receive a further sentence of fifteen years in prison. When convicted of extortion or dissuading a witness to benefit a street gang, you will face an additional seven years in prison. In case you are convicted of a felony whose punishment is life imprisonment, and it is proved you violated PC 186.22b, you will be sentenced to life imprisonment, but you won’t be eligible for parole unless you have served no less 15 years in prison.
- Misdemeanors
Under PC 186.22b, any misdemeanor charge that is proved to be promoting criminal gang involvement is enhanced to a felony. If the minimum sentence for a misdemeanor charge is twelve months, but then it is established the misdemeanor offense was committed to aid, promote, or in association with a criminal gang, the sentence is enhanced to 12, 24, or 36 months in prison.
Note that if a misdemeanor is turned into a felony, you will not face additional sentencing for gang enhancement.
Legal Defenses for PC 186.22 Charges
Some of the common defenses against STEP Act include:
Disputing the Underlying Charge
If you can fight the underlying felony charge and avoid conviction, you can’t receive any sentencing for gang enhancement. For you to face the additional penalties under PC 186.22b, first, you must be convicted of the crime you were charged with initially. So, by fighting the underlying charges, you can avoid both penalties. A profound and experienced criminal attorney will argue that the prosecution has insufficient evidence to prove you committed the underlying crime; thus, you didn’t commit a felony for the benefit of a street gang.
You aren’t an Active Participant of the Gang
If fighting the causal charge doesn’t work for you, you can oppose the elements of PC 186.22a to avoid the additional punishment by arguing that you are not an active member of the criminal gang. Remember that the prosecution will convict you if they can prove you are an active participant in a criminal gang. In most cases, these are just allegations, and the prosecutor often lacks the evidence to show that you are an active participant. An excellent attorney will poke holes in the claims of the prosecutor to show that you never participated actively in gang activities.
You were not Acting to Benefit or Promote the Gang
When proving you are guilty under PC 186.22B, the prosecution must verify that your felony actions were meant to benefit or further the interests of a gang. To defend against this element, you can argue that you were pursuing your interests and not acting to help the group. Although you will be convicted of the underlying crime, there will be no additional sentencing for gang enhancement. That way, you will serve a shorter sentence.
The Prosecuting Party is Illegally Imposing Gang Sentencing Enhancement
A prosecutor can file charges that are inappropriate or illegal against you. Some prosecutors are overzealous when it comes to the issue of gang violence and crimes. Due to the obsession to try and punish these offenders, the prosecutor might impose inappropriate charges on you intentionally or because of failure to understand the law. Your attorney can evaluate the charges against you and the different rules that apply to them. If he or she finds illegalities or any violation of the STEP Act, then it will be easy to prevent unlawful or unfair charges and a conviction.
Imposing PC 186.22b Sentencing Would not be Promoting the Interests of justice
Many legal scholars have found the STEP Act far too harsh and unjust. It is at the judge’s discretion to enhance the sentencing based on the demands of the interest of justice. As such, if you have an additional charge of gang enhancement, an excellent criminal lawyer can convince the judge that by giving you another sentence, it will be an unfair punishment. To prove the unfairness or why you don’t deserve the punishment, your attorney should avail information about your job, contributions, and obligations to your family and the society in general and even your character. If the judge is happy with this information, he or she might be persuaded to exercise the discretion and avoid gang sentencing enhancement.
Gang Enhancement and How It Relates to Other Sentencing Enhancements
Two other sentencing enhancements can be charged in place or alongside gang enhancement. These are:
- Personal Use of Gun
PC 12022 &12022.5 focuses on enhancing penalties for personal gun use. Under PC 12022, you will get an additional twelve months if you were armed with a gone during the commission of a felony. Even if it is another person who uses or discharges the gun, but you are committing the crime together, you will not be exempted from the enhanced sentencing.
On the other hand, PC 12022.5 attracts an additional and consecutive 36, 48, or 120 months in prison if you personally use a gun when committing a felony. The prosecution can opt to impose enhanced sentencing for personal gun use instead of gang sentencing enhancement.
- Use a Gun, or you are Done
Under PC 12022.53, if you personally use a gun to commit a felony, you will be subject to additional and consecutive sentencing of 120 months on top of the causal crime. Furthermore, if you fire a gun in person, you will face enhanced sentencing of twenty years and an additional twenty-five years if you fire a gun in person, inflicting significant bodily injuries or death on someone else. Crimes that trigger PC 12022.53 sentencing include:
- Murder
- Carjacking
- Kidnapping
- Robbery
PC 12022.53 relates with PC 186.22b in the following ways:
- If you individually use or brandishing a gun during the commission of specific felonies to benefit a criminal gang, enhanced sentencing will be imposed on you by both PC 12022.53 & PC 186.22b.
- If you are a principal in a specified felony and another principal not you individually use or discharges a gun during the offense for the value of the gang, you will only obtain an enhanced sentence under PC 12022.53. It is contrary to the fact that the sentencing is used where you individually use a gun.
Note that you cannot face the two charges if you didn’t personally use or discharge a gun.
Comparison of Gang Sentencing Enhancement and Federal Gang Laws
USC 1961-68, USC 1959, and USC 848 make it a felony to commission or participate in serious state or federal crimes to promote the interests of a criminal enterprise. The federal government doesn’t prosecute all cases of gang enhancements. It only focuses on disrupting and destroying large and well established criminal gangs dealing drugs or committing other crimes within an extended geographical location. Also, when local authorities have limited resources to investigate and prosecute criminal gangs, federal gang laws might be used.
The penalty enhancements under USC 521 is an additional ten years for gang participants or members convicted of serious crimes.
Differences Between Federal and California Gang Crimes
The main difference between the two is that under federal law, once you have been convicted, there is no parole. You must serve your full sentence. California laws, on the other hand, provides probation to convicts of criminal gangs. Doing so gives an advantage to both governments because if you are being charged under the California local authorities and you have failed to plead guilty, you can be threatened with prosecution under the federal law where you will serve the full sentence without probation. Because of this, you might end up pleading guilty under California law to avoid the harsh punishment for a conviction under the federal rules.
The other difference between the two is in the definition of a criminal enterprise and street criminal gangs. Small street gangs dealing drugs in the same county cannot be prosecuted under federal law because they don’t fit the definition of a criminal enterprise. But a street gang selling drugs or involved in violent crimes and is interfering with foreign and interstate commerce will be considered a criminal enterprise and will be prosecuted under the federal law.
Find a Los Angeles Criminal Defense Attorney Near Me
As you have seen above, the STEP Act is very complicated. Because of this, even a prosecutor with good intentions might bring charges against you unfairly and inappropriately. Los Angeles Criminal Lawyer is ready to investigate your gang enhancement charges and ensure that whatever you are being charged with is appropriate and, if not, get the charges dropped. Reach out to us today at 310-502-1314 for any questions regarding violent crimes and gang laws.
