In California, two people can be pronounced guilty of the same offense yet face different sentences. These disparities occur due to a legal concept known as ‘enhancement.’ If you are accused of a violation that meets given conditions or the prosecutor proves you associate with a certain group, you could face enhanced penalties under state law. One example of this legal concept is the gang enhancement statute. Under this law, a person can face more severe punishment if proven to have been involved in gang-related activities.

Knowing you have been found guilty of a crime and must face the consequences is devastating. It is even more devastating if you must face enhanced penalties under the gang enhancement law. For this reason, you want to contact a criminal defense lawyer as quickly as possible if you are accused of a crime and the prosecutor alleges it is gang-related. A lawyer can help you understand your charges and your legal options.

At Chula Vista Criminal Attorney, we will help you fight the underlying crime to avoid facing enhanced penalties. We will examine your case carefully before determining what strategy to apply to obtain the best possible. Call us for a consultation and to learn more about how we can help you if charged in Chula Vista.

Participating In A Street Gang Overview— 186.22(a) PC

California 186.22 PC addresses two classes of criminal street gang activities and the associated punishment. PC 186.22(a) criminalizes actively participating in a criminal gang, knowing the gang is involved in a pattern of unlawful activities, and assisting or furthering those activities.

The prosecution must demonstrate the following elements for the judge to convict you of being involved in a criminal gang per 186.22a PC:

  • You actively engaged in a street gang.
  • You knew the members of the gang participated in a pattern of gang offenses
  • You willfully assisted, promoted, or furthered felony criminal behavior by gang members

Consider the following instances as evidence of participation in a criminal street gang:

  • Two street gang members assault someone with a caustic chemical
  • A non-street gang member carjacks someone else for a gang's benefit
  • A street gang member engages in drug trafficking at the order of another member

Note that the judge can only convict you under 186.22a PC if you were an active participant in the gang, whether you participated firsthand in any offense or not. For example, the court could convict you for fetching the firearm that another person used to kill a rival gang member since you actively aided in perpetrating the criminal offense. The judge cannot convict you for violating 186.22a PC for being a street gang member passively or only in name. The D.A. must show you actively participated in the illegal activity.

According to Penal Code 182.22, a street gang means a group/organization of more than two people, whether informal or formal,  with a common identifying symbol/sign or name and:

  • Whose members participate in given unlawful activity as one of their primary activities, and
  • The members collectively participate in a pattern of criminal gang activities.

California has discovered over 600 different gangs. Still, per 186.22 PC, any group matching the above criteria is deemed a criminal street gang. Therefore, violations committed in relation to that gang will be subject to sentencing enhancement.

As mentioned, the primary activity of a street gang is committing certain violations in a pattern of illegal activity. A 'pattern of criminal activity means:

  • Perpetrating more than one crime itemized below;
  • At two or more separate periods by more than one person;
  • Within three years of each other, and
  • The prosecution must demonstrate the violations were associated with a street gang.

The list of particular violations that establish a pattern of illegal gang activities includes violent and serious felonies listed below:

  • PC 136.2, intimidating a victim or witness
  • PC 187, murder/unlawful manslaughter or homicide
  • PC 203, mayhem
  • PC 205, aggravated mayhem
  • PC 206, torture
  • PC 207, kidnapping
  • PC 211, robbery
  • PC 213, home invasion
  • PC 215, carjacking
  • PC 244(a)(2), assault with a firearm
  • PC 245(a)(1), assault with a deadly weapon
  • PC 246, shooting at a lived-in car or dwelling
  • PC 261, rape
  • PC 422, criminal threats
  • PC 451, arson
  • PaC 459, burglary
  • PC 487, grand theft
  • PC 518, felony extortion
  • Specific sexual crimes
  • Firearm possession
  • PC 487(d)(1), grand theft auto
  • 487(d)(2), grand theft firearm
  • Drug trafficking, distribution, and sales
  • PC 186.10, money laundering
  • Theft and illegal driving or taking of a motor vehicle
  • Discharging or allowing the discharge of a gun from a vehicle
  • Any felony offenses that inflict significant bodily harm

To demonstrate you furthered, assisted, or promoted a felony offense by a gang, the D.A. must prove you directly perpetrated a felony offense or aided and abetted.

California Gang Enhancement Law— PC 186.22(b)

To curb the increase of criminal street gang activities in California, generally connected to violent offenses, the state has particularly passed laws to impose increased penalties for criminal gang activity. The STEP (Street Terrorism Enforcement Prevention) Act, enacted in 1988, put in place various enhancements for offenses committed in relation to gang activity.

PC 186.22(b) is the law that describes sentence enhancements for criminal street gang activity. If the judge convicted you of an offense you committed to benefit a street gang, 186.22b PC adds a mandatory extra prison term to the incarceration period of the underlying offense. This law permits judges to order considerably more severe punishment on offenders who commit crimes in relation to gang activity, including up to life in prison.

PC 186.22(b) states that anybody who knowingly participates in criminal gang activity-related or joins gang members while committing a violation can be subject to prosecution under gang enhancement statutes. The sentence enhancement adds more time to the incarceration period of any crime perpetrated to further gang activities.

186.22(b) PC allows prosecuting attorneys to impose a sentencing increment provided they can demonstrate the underlying illegal activity was part of gang participation.

Specifically, for a gang enhancement sentencing to apply in your case, the D.A. must show that:

  • The crime you committed forms a sequence of gang activity
  • The violation benefitted a gang, and the benefit was more than reputational

The judge must find you criminally liable for the original offense for the gang enhancement sentencing to apply. This means that the D.A. must successfully demonstrate all the criminal elements constituting the original violation plus the two elements stated above beyond any reasonable doubt for a conviction to occur.

Unlike 186.22a PC, the prosecution does not need to prove that you actively participated in a gang when you committed the violation.

When PC 186.22a and PC 186.22b are taken together, they bring stiff consequences for offenses connected to a criminal street gang, whether the offender considers themself a member or not. For example, if your friends are gang members, and you help them severely beat up a rival gang member, you will face gang enhancement sentencing for engaging in the street gang's illegal activity despite not being a gang member.

It is worth repeating that gang sentence enhancements under 186.22b PC will only be effected if the court pronounces you guilty of the underlying violation. If accused of street gang-related carjacking, but the judge eventually finds you not guilty or drops your case, the enhanced sentence will not apply.

PC 186.22 Underwent Some Changes

In October 2021, the California legislature enacted, and Governor Gavin Newsom signed AB 333, also known as the STEP Forward Act, into law, amending PC 186.22, the gang enhancement statute. AB 333 updated 186.22 PC by redefining given terms and raising the standard for applying enhancements in gang-related activities.

Under the old law, an offender found guilty of gang-related activity would face an enhanced sentence if the D.A. proved that:

  • The offender committed the criminal offense for the benefit of the criminal gang, and
  • They intended to promote, further, or assist illegal acts by the street gang members

Under the new law, an offender will only face a gang enhancement if the D.A can show that:

  • The offender’s crime forms a sequence of gang activity, and
  • The crime benefited the gang, and the common benefit was reputational

Unlike the old statute, the current statute specifically provides that the charges the accused faces cannot be used as evidence of a sequence of gang activity. The D.A. must demonstrate through other past illegal activity that a pattern exists.

By proving the common benefit was reputational, the D.A. must demonstrate a link between a gang and the accused. Currently, offenders are pronounced guilty of criminal gang activities when they might have merely been acquaintances with gang members, from one neighborhood as the gang members, or related to the gang members.

The old state described a criminal street gang as a group/organization of more than two people with a common identifying symbol/sign or name whose primary activity is committing offenses, and the members are engaged in a sequence of criminal activity, whether collectively or individually.

Under the new statute, a criminal street gang is redefined as:

  • An organization or group of more than two people with a common identifying symbol/sign or name,
  • Whose primary activity is committing one or several of the criminal acts listed under 186.22 PC, and
  • The group members should be collectively involved in a sequence of gang activity.

Therefore, the gang members must participate in a sequence of gang activity collectively and not individually.

Additionally, the new statute removes felony vandalism, looting, and particular personal identity fraud crimes from violations that could establish a ‘pattern of criminal gang activity.’

Consequences for a 186.22 PC Violation

The penalties for gang enhancement vary based on whether the accused is prosecuted under 186.22a PC or 186.22b PC.

Violating 186.22a PC is deemed a wobbler crime. A wobbler is a crime the D.A. can charge either as a felony or misdemeanor based on the defendant's criminal history and case facts.

If charged and convicted of a misdemeanor, you will face a fine not exceeding one thousand dollars and custody in jail for a maximum of 12 months. And if charged and found criminally liable for a felony, you will face up to ten thousand dollars in fines and custody in prison for a maximum of three years.

Consequences Under 186.22b PC

The consequences of offenses committed in relation to a criminal street gang may be significantly more severe than those for the same offense without gang enhancements. The amount of additional prison sentence you will face under the gang sentence enhancement statute varies based on the case facts. For example, you can be subject to additional prison time as follows:

  • A maximum of fifteen years to imprisonment for life if you committed any of the specified felony offenses mentioned under PC 186.22b, for example, PC 206, torture
  • Up to ten years in prison if you committed a violent felony
  • Up to five years of incarceration if you perpetrated a serious felony
  • A maximum of four years in prison if you executed a generic felony

Additionally, if your underlying conviction is for any felony punishable by imprisonment for life, the court will sentence you to life in prison. In that case, you will only receive credit towards your eligibility for parole after serving at least fifteen years.

The increased sentence is served consecutively. This means it starts when your initial sentence ends.

Legal Defenses

Since the enhanced sentences for street gang-related violations are severe, having an experienced defense lawyer is essential to obtain the best possible outcome. Luckily, several strong defenses can either prevent a conviction or stop the increased penalties from being effected. These defenses include:

There Is No Underlying Violation

You can only face gang enhancement sentencing if you committed a gang-related felony violation like extortion or grand theft. Additionally, the D.A. must demonstrate all the elements of the felony beyond any reasonable doubt. Your lawyer may submit evidence that absolves you from participation in the original crime or show the crime was not gang-related. If you did not commit an offense in association with a gang, you should not face either the enhanced or underlying penalties.

Your Crime Was Not for the Benefit of the Gang

Remember that a person cannot face a gang sentence enhancement unless they committed an offense for the gang's benefit. For example, maybe you executed a felony offense but did so independently, not for the advantage of or in the name of any street gang. The sentencing enhancement only applies if the violation was street gang-related.

You Are Not Affiliated with a Gang

A conviction per 186.22a PC will occur if you actively participated in a gang's commission of the felony offense. Therefore, your lawyer may argue you are a member of the gang only in name or passively or are not a member at all and did not participate in committing the crime.

You Were Unaware The Gang Participated In Illegal Activity

For the judge to find you guilty of PC 186.22a violation, the prosecuting attorney must prove you knew about the gang's criminal activities. It is challenging to demonstrate whether or not a person knows about something, and your lawyer can assert that you were unaware the group was involved in illegal gang activity.

False Allegations

Gang-related crimes often involve false accusations, either by other defendants or police, for being part of a gang. In most cases, a person could be accused despite having limited connections to or interactions with the said gang. If that happened in your case, your attorney could argue the false accusation defense to prevent you from facing a more severe sentence.

Prosecutor Improperly Ordered Gang Enhancement

Prosecuting attorneys have confessed to charging defendants with gang enhancement improperly without sufficient evidence of gang involvement to intimidate them into agreeing to a plea deal. You want to consult a skilled criminal defense lawyer before accepting a plea deal for a violation due to the fear of facing gang enhancement. Your lawyer can request to review all the evidence against you to determine whether the prosecutor is bluffing just to have you agree to a plea deal.

Change of Venue

Judges and juries living in neighborhoods where law enforcement harassment is common and who are usually sympathetic to criminal defendants can be hostile when the charges in question are gang-related as they live afraid of gang violence. Put otherwise, a jury can be torn between fear of street gangs and fear of the police. If you are supposedly affiliated with a criminal gang, the jury may be prejudiced against you. Your lawyer may bring a motion to change the venue for the trial to ensure the jury is unprejudiced.

Bifurcated Trial

Since judges and juries have found gang affiliation allegations highly prejudicial, your lawyer can bring a motion seeking a bifurcated trial. A bifurcated trial means your court trial would be held in two stages. You would be prosecuted for the supposed felony offense. If found guilty, you would undergo another court trial to establish whether you perpetrated the felony offense, violating 186.22b PC. The jury or judge would not rule on the criminal gang enhancement accusations unless you are found guilty in the first trial.

Related Laws to Gang Enhancement

Four laws are related to the gang enhancement law in California. They are the following:

  • Ten-twenty-life law under 12022.53 PC
  • Hate crime sentence enhancement under 422.75 PC
  • Significant bodily injury sentence enhancement under 12022.7 PC
  • Criminal conspiracy under PC 182

Ten-Twenty-Life Law

Under 12022.53 PC, the ten-twenty-life statute applies when a person commits a felony offense and uses a firearm while committing that violation. Like gang sentence enhancement, the accused could be subject to a life imprisonment term if they violate this law. The court imposes a life imprisonment sentence if an accused seriously injures or kills someone else with a firearm while committing a felony.

Hate Crime Sentence Enhancement

Per 422.75 PC, hate crime sentencing enhancement usually applies when a person is found criminally liable for a felony offense, and the felony is categorized as a hate crime. Unlike gang sentencing enhancement, the maximum sentence enhancement a court can order under this statute is four additional years in state prison.

Significant Bodily Injury Sentence Enhancement

Under 12022.7 PC, the significant bodily injury sentence enhancement law applies when a person inflicts substantial or great injury upon a victim while committing a felony offense. The maximum sentence increment that a judge can impose under this statute is a prison term of six years. Like gang enhancement under 186.22 PC, an offender serves the added prison sentence under this statute immediately after they finish serving time for the original felony.

PC 182, Conspiracy Laws

PC 182 criminalizes criminal conspiracy. You commit conspiracy when you agree with someone else to commit an offense, you or the other party to the deal take an overt act to advance or further the agreement, and one or several acts are committed in California.

A conspiracy to commit a felony is a felony offense punishable by the penalty the underlying felony offense carries. For example, if you are pronounced guilty of conspiracy to commit rape, you will be subject to the consequences of the rape crime. If guilty of conspiring to execute two or more felonies, you will face the penalties for the violation with the most severe sentence.

Conspiring to commit a misdemeanor violation is deemed a wobbler. A felony or misdemeanor conviction will lead to substantial fines and imprisonment.

Find an Experienced Violent Crimes Attorney Near Me

Gang enhancements are serious matters that can double or even triple the length of an offender's sentence. That is why, if accused of a crime involving gang enhancements, you want to consult a skilled defense lawyer with specific knowledge of enhancements. The lawyer can review your case facts and develop a defense promptly.

At Chula Vista Criminal Attorney, we have lawyers experienced in all kinds of criminal cases, including those involving gang enhancements. We will vigorously defend your constitutional rights and build a defense to achieve the best possible outcome. Call us at 619-877-6894 for a cost-free consultation if charged in Chula Vista.