California has some of the strictest anti-gang laws in the nation, and it applies them via so-called “sentencing enhancements.”
Under California Penal Code 186.22, it is illegal to participate in a street gang by:
- Participating in the gang while furthering a felony, and/or
- Carrying out a crime for the benefit of a gang.
An offense under 186.22 PC is a wobbler, meaning that it can be prosecuted as either a felony or misdemeanor, depending on the facts of the case and the defendant’s criminal history.
As a misdemeanor, participation in a street gang is punishable by up to a year in jail, and it carries a three-year prison sentence as a felony. It is applied as a sentencing enhancement, meaning that the defendant serves the additional sentence after serving the sentence for the underlying offense.
If you are accused of participating in a street gang, you should contact an experienced criminal defense attorney as soon as possible. Your attorney can review the facts of your case with you and start building your defense.
How does California law define “participation in a street gang?”
Participating in the gang while furthering a felony is defined in California Penal Code 186.22a. In order to convict someone of participation in a street gang, the prosecutor must prove:
- The defendant “actively participated” in a street gang,
- He or she knew that the gang’s members engaged in a pattern of crimes, and
- He or she willfully assisted, furthered or promoted felony conduct by the gang.
For the purposes of this law, “active participation” in a street gang means that the defendant is not passively engaged in the gang or in name only. They must be actively engaged in gang activity.
As well, California law defines a criminal street gang as any organization of three or more people that:
- Has a common identifying name, sign or symbol,
- Engages in criminal activities as one of its primary activities, and
- Is engaged in a pattern of criminal activity, either alone or together.
How does California law define “carrying out a crime for the benefit of a gang?”
Carrying out a crime for the benefit of a gang is defined in California Penal Code 186.22b. In order to convict someone of carrying out a crime for the benefit of a gang, the prosecutor must prove:
- The defendant attempted or committed, or attempted a crime for the benefit of or at the direction of a criminal street gang,
- When the defendant committed the crime, he or she intended to assist, further or promote criminal gang-related conduct, and
- The defendant was guilty of the underlying crime that was committed for the benefit of a gang.
It’s important to note here that there is no requirement under 186.22b that the defendant be an “active participant” in the gang.
Penalties under California’s gang enhancement laws
As we mentioned earlier, participation in a street gang (186.22a PC) is a wobbler. That means it can be charged as either a felony or misdemeanor. The prosecutor will make this decision based on the facts of the case and the defendant’s criminal history.
If convicted of a misdemeanor, the defendant can be sentenced to up to one year in jail. If convicted of a felony, the defendant can be sentenced to three years in prison.
Carrying out a crime for the benefit of a gang (186.22b PC) is always a felony. The defendant can be sentenced to an additional two, four or five years in prison on top of the sentence they receive for the underlying crime. Sentencing enhancements can range as high as 15 years in especially extreme cases.
Defenses against gang enhancements
If you’ve been accused of participation in a street gang or carrying out a crime for the benefit of a gang, it’s important to contact an experienced criminal defense attorney as soon as possible. An attorney can review the facts of your case with you and start building your defense.
- Some possible defenses against these charges include:
- You were not an active participant in the gang
- You were not aware that the gang was engaged in criminal activity
- You were not aware that the crime you committed would benefit a gang
- You did not intend to assist, further or promote any criminal activity by the gang
- The police used illegal search and seizure tactics to obtain evidence against you
If you’ve been charged with a crime that has gang enhancements, it’s important to contact an experienced criminal defense attorney. An attorney can review the facts of your case and start building your defense.
Robert M. Helfend is a criminal defense attorney who has been practicing law for more than 40 years. He has experience with all types of criminal cases, including those that involve gang enhancements. If you have been charged with a crime that has gang enhancements, contact Robert M. Helfend today for a free consultation – 800-834-6434.