In California, crimes committed by people with gang ties attract sentence enhancements. While numerous laws prohibit gang crimes, a judge increases a defendant's sentence based on California's Street Terrorism Enforcement and Prevention Act (STEP) under Penal Code 186.22.
Depending on the charges you face and the evidence tabled by the prosecution, some crimes can even attract an additional 25 years-to-life sentence. The court will also impose a minimum sentence, ensuring you spend time behind bars. Because of the severity of the allegations you face, it is imperative to hire an experienced and reliable attorney. Let us help you fight the street gang allegations to give you the best chance of an acquittal or reduced sentence.
If you are arrested for a gang crime in Long Beach, CA, a conviction will lead to a longer and harsher sentence. We urge you to contact Long Beach Criminal Attorney Law Firm for reliable legal representation. Let us help you build a strong defense strategy with the best odds of yielding a favorable outcome.
Gang Crime Laws Explained
California has strict laws designed to combat gang violence by imposing harsher punishment for gang-related crimes. Participating in a street gang or committing an offense to benefit such groups is illegal. Gang affiliation can attract misdemeanor or felony charges, and the applicable sentence is added to the penalty for the original crime.
Street Gang Description
Under Penal Code 182.22, the law describes a street gang as an ongoing association or organization of at least three people that identify by a common name, symbols, or body markings and engage in criminal activity. Your group must fit the following description:
- You are an association, organization, formal or informal group
- The group has three or more members
- You identify by a common name, sign, body marking, or symbol
- You engage in a pattern of criminal activities (even if it is the commission of one offense listed under PC 182.22)
The prosecution uses circumstantial evidence to establish an ongoing association, organization, or group. Within law enforcement officers, there are "experts" that can skillfully investigate the size, psychology, sociology, customs, and style of operations of a gang. A group of people who meet severally, use the same symbols or emblems, and engage collaboratively in legal or criminal activities can be legally classified as an association or organization.
The "experts" can even unveil subsets of larger street gangs or different small groups that work collaboratively within an organization's structure.
Active Participation in a Criminal Street Gang Defined
It is common for street gangs to have passive and active members. While the Penal Code 182.22(a) does not provide a legal description for "active participation," the prosecution can establish the level of affiliation based on the defendant's activities. Note that these activities do not necessarily need to involve the accused devoting most of their time or effort to the gang.
Some facts that can establish active participation include having gang tattoos, constantly being in the company of known gang members, or having a history of gang-related offenses. Establishing active participation enables the prosecution to point out the motive of engaging in activities that promote, further, or aid a gang's commission of a crime. Moreover, the underlying offense must be at least one of the 33 crimes listed under PC 182.22.
Some of the common gang-related offenses listed under the statute include:
- Robbery — Penal Code 211
- Murder — Penal Code 187
- Arson — Penal Code 451
- Assault with a deadly weapon — Penal Code 245(a)(1)
- Assault with a firearm — Penal Code 245(a)(2)
- Grand theft — Penal Code 487
- Grand theft auto — Penal Code 487(d)(1)
- Extortion — Penal Code 518
- Kidnapping — Penal Code 207
- Rape — Penal Code 261, etc.
The prosecutor must prove the following elements beyond a reasonable doubt to establish active participation in criminal gang activity under Penal Code 186.22(a):
- You actively participated in a criminal street gang
- You knew that the gang members engage or have engaged in patterns of illegal gang activities
- You willfully furthered, promoted, or assisted in the felonious criminal activities of the gang
Active involvement in a criminal street gang is a wobbler offense charged as a misdemeanor or a felony. If the prosecution imposes misdemeanor charges, violating Penal Code 186.22(a) is punishable by:
- Jail sentence of up to 1 year
- A fine not exceeding $1,000
A felony conviction for active participation in a criminal street gang attracts the following penalty:
- Incarceration in state prison for up to 3 years
- A $10,000 maximum fine
You can still face a harsh penalty under Penal Code 186.22(b) gang sentencing enhancement even if the prosecution cannot establish you are an active gang member. It is enough for the DA to show you committed a crime for the benefit of a gang.
If you are facing charges for a gang crime, it is imperative to seek the assistance of an experienced criminal defense attorney. Such allegations are serious because they attract a more significant penalty and mandatory sentences for those convicted. Your lawyer can build a strong defense that can significantly reduce the odds of the court amplifying your sentence.
Gang Enhancement — Penal Code 186.22(b)
Gang enhancement laws allow a judge to impose an additional prison sentence to run consecutively with the penalty for the underlying crime. The punishment for a gang-related crime is often more severe than the sentence for the principal felony.
Because of the severity of the penalties for gang involvement, it is imperative to work with a skilled criminal defense attorney. It would be best if you had an expert with an in-depth understanding of the law in street terrorism and gang enhancement.
Your lawyer should help you fight the underlying charge and hold the prosecution to the constitutional requirements of proof for gang involvement. By humanizing you and neutralizing the gang affiliation accusations, it is possible to achieve a suitable outcome. An experienced attorney can also limit the admission of damning or unreliable evidence to protect you from potentially harsh penalties.
Gang Enhancement Penalties
The mandatory minimum sentence under gang enhancement laws can vary from case to case. Generally, a judge can impose 2 to 15 years or 25 years to life sentences depending on the facts of a matter and whether other aggravator factors exist.
Unlike PC 186.22(a), the prosecution does not need to establish your active involvement in gang activities for a judge to impose gang enhancement penalties. However, you must be convicted of an underlying crime for the penalty to apply. It is enough for the prosecution to prove that:
- You committed or attempted to commit a crime for the benefit or in association with a criminal street gang
- In executing the crime, you aimed to further, promote or assist the criminal street gang's activities
Here's a rough overview of the penalty enhancements to expect if convicted of the underlying felony and the prosecution can prove your gang involvement:
- A sentence enhancement of 2, 3, or 4 years following a gang-related felony conviction
- An extra 5-year sentence if convicted for a serious felony like assaulting a peace officer, drug crimes, or assault with a deadly weapon
- An additional 10-year jail term if convicted for a violent felony like sex crimes, criminal threats, and assault causing great bodily injury
- A 15-year sentence enhancement if convicted for carjacking, home invasion robbery, shooting from a vehicle, or shooting into an inhabited dwelling
- Life imprisonment if convicted of murder during a home invasion, carjacking, or drive-by shooting
- Life imprisonment if convicted of a felony that carries a sentence of 25 years to life
The prosecution can impose felony charges under Section 186.22(d) even if the underlying crime is typically a misdemeanor. The statute allows this whenever a defendant commits a gang-affiliated misdemeanor.
Moreover, the judge can impose additional time on the enhanced sentence if convicted of a felony that happened within 1,000 feet of a school. Because of the complexities involved in gang enhancement laws, you need a skilled attorney who can help you understand the charges you face and the full extent of the penalties a judge can impose.
Other Laws Allied With California's Gang Activities Law
California has a broad set of laws prohibiting criminal gang activities and involvement in criminal organizations. Three related laws can heavily impact your sentence if convicted of a gang crime. They include:
Penal Code 422.75 — Hate Crime Penalty Enhancement
You can be subject to hate crime enhancement under Penal Code Section 422.75 if the underlying felony is a hate crime committed in relation to criminal street gang activities. Penal Code 422.55 defines a "hate crime" as any illegal act committed against another person because of their gender, disability, religion, race, nationality, or sexual orientation.
Under Penal Code 422.75, a defendant qualifies for a sentence enhancement if:
- The accused is convicted of a felony
- The offense is classified as a hate crime
The additional penalty for a misdemeanor hate crime is:
- An extra sentence of 1, 2, or 3 years in state prison
If convicted of a felony hate crime, a judge can impose a higher sentence irrespective of whether you committed the offense in person or aided or abetted the commission of the crime. Also, the court will seek the maximum penalty enhancement when an offense involves the use of a firearm or other aggravating factors like gang affiliation exists.
The enhanced penalty that applies includes:
- An enhanced sentence of 2, 3, or 4 years
Penal Code 12022.7 — Great Bodily Injury
Some of the crimes listed under Penal Code 186.22, like an assault with a deadly weapon, home invasion robbery, and kidnapping, can lead to great bodily harm to the victim. "Great bodily harm" includes injuries like concussions, contusions, broken bones, or gunshot wounds.
If the court imposes sentence enhancement under this statute, it will be a consecutive term. You will serve the imposed sentence once you complete your prison time for the gang crime. Note that a judge can only set the penalty for Penal Code 12022.7 when the underlying offense is a felony.
The enhanced penalty that applies includes:
- An additional 3 to 6 years in state prison
Penal Code 12022.53 — 10-20-Life Law
Facing charges for a gang crime is bad enough. However, the situation can quickly go downhill if you allegedly committed the underlying felony using a gun. Penal Code 12022.53 PC was enacted in 1997 and targeted the use of firearms during the commission of violent felonies. While the statute does not apply to all gun-related crimes, it applies to 16 specific felonies, some of which are listed under Penal Code 182.22.
The additional penalty for violating PC 12022.53 will depend on the facts of a case. For instance, using a gun attracts an extra 5, 10, or 15 years in prison. If you discharge the firearm, the judge can impose an additional 5, 20, or 25-year sentence on the penalty for the underlying offense. If the victim is killed or injured during the commission of the underlying felony, you could face the enhanced penalty of 5 years, 25 years to life, or 30 years to life.
Best Defenses To Fight Gang Enhancement Penalties
Gang involvement allegations can easily stretch your sentence by several years or decades. The severity of the penalty imposed makes it imperative to find a competent criminal defense attorney with a proven track record. The expert will devise a defense strategy based on the existing evidence and the strength of the prosecution's case.
Here are some of the best defenses to fight gang involvement allegations:
No Criminal Street Gang
A regular felony or misdemeanor becomes a gang crime because the defendant commits it to benefit an existing criminal street gang or to promote, aid, or further its activities. A judge cannot impose gang enhancement penalties if the street gang's existence is in question.
Your attorney could argue that the people involved in an alleged offense are not part of any ongoing organization, association, or group. If there is no evidence showing leadership hierarchy, regular meetings, or similar body markings, a judge will likely refute the claim that a street gang exists.
No Underlying Criminal Activity
One of the primary aspects the prosecution must satisfy for a judge to impose gang enhancement penalties under Penal Code 186.22(b) is that you are guilty of an underlying offense committed for the benefit of a criminal street gang or to further, aid, or promote its activities.
A reliable attorney will build a strong defense for the underlying charge and work on getting you acquitted. If you are not guilty of an underlying criminal activity and the prosecution cannot prove active participation in a criminal street gang under Penal Code 186.22(a). Therefore, you are ineligible for gang enhancement penalties.
The Underlying Crime Is Not Gang Affiliated
The prosecution bears the burden of proof to show the link between you and a criminal street gang. Just because you committed a crime and a gang exists does not necessarily mean the two are connected. It is not enough for the prosecutor to claim you are allies or relatives with any gang member or live in the same neighborhood.
For gang enhancement penalties to apply, there must be more than just reputational ties. A competent criminal defense attorney will hold the prosecution to the evidentiary standards and reduce the odds of gang enhancement if concrete evidence showing your relationship with a gang cannot be tabled.
No Participation by the Defendant
Cases of mistaken identity are not uncommon when it comes to gang crimes. Fortunately, the prosecution must prove your active or passive participation in gang-affiliated activities. If there is no evidence showing you are an active gang member and the prosecution cannot tie you to a crime using solid evidence, your attorney can argue that you did not participate in any criminal street gang activity.
No Willful Participation
One of the elements the prosecution must prove is that you "knew" that the gang members engaged or have engaged in patterns of criminal gang activities. Also, you must have "willfully" assisted, promoted, or furthered the felonious activities of a street gang. The judge cannot impose gang enhancement penalties if you were forced into a situation and only committed an offense to avoid potential harm or injury. The same applies if you had no idea that specific people were part of a gang, perhaps because they have no known pattern of committing criminal activities.
Fighting gang affiliation allegations is an uphill task. The legal landscape can turn into a minefield that jeopardizes your freedom and future even if the prosecution alleges minimal or passive participation in a criminal street gang. A competent attorney can ensure a favorable outcome by presenting strong defenses that disapprove of your connection with a criminal group. The expert can also use evidence to challenge the prosecution's claims. Also, filing legal motions to suppress any illegally obtained evidence can increase your odds of achieving desirable results. It is imperative to involve an attorney as soon as possible to allow adequate time to build a solid defense strategy.
New Gang Enhancement Law — AB 333 (STEP Forward Act)
Assembly Bill 333, also referred to as the STEP Forward Act became active on January 1, 2022, and is the most recent update of Penal Code 186.22. The statute redefines the terms of gang enhancement laws and increases the standards of proof that prosecutors must satisfy.
The STEP Act (Street Terrorism Enforcement and Prevention Act) was enacted in 1988 to help eliminate criminal street gangs. Penal Code 186.22 was designed to impose additional punishment on defendants if they were gang members who committed serious and violent crimes and knew as much when they joined. Proposition 21, which became effective in 2000, expanded areas where gang enhancement is applicable.
Under gang enhancement laws, you can serve anywhere between a few years and a life sentence for a gang-affiliated criminal activity. A judge can impose an additional sentence even if the underlying offense is nonviolent or a misdemeanor. Also, there are harsh mandatory minimum sentences under Penal Code 186.22. Unfortunately, these laws have loopholes that make it possible for a defendant to be subject to an enhanced penalty based on mere allegations of gang involvement.
Under AB 333, a judge can only impose gang sentence enhancement if the following exist:
- A pattern of criminal gang activity
- The defendant commits a crime that benefits more than just the reputation of a criminal street gang
Moreover, AB 333 excludes some of the crimes listed under PC 182.22. The prosecution cannot consider offenses like identity fraud, looting, and felony vandalism when establishing a "pattern" of criminal gang activities. The prosecution bears the burden of proving your guilt of the underlying offense before seeking sentence enhancement for gang involvement.
Effective January 1, 2023, the court will have the power to choose a proper gang enhancement sentence based on what is in the best interest of justice. The "STEP Forward Act" seeks to reduce racial imbalances typically seen when courts impose Penal Code 186.22. A 2020 report by the Penal Code commission showing a statewide database indicated disproportionate numbers of alleged gang members, especially from Latina and Black individuals. These numbers of white individuals subjected to gang enhancement laws are relatively low.
The STEP Forward Act accomplishes the following:
- An end to imposing gang enhancements based on shallow facts like a defendant knows or is related to a gang member
- A reduced list of offenses that qualify for gang enhancements
- Higher standards in proving gang affiliation or a "pattern" of criminal gang activities
An experienced criminal defense attorney will be well acquainted with the old and new gang enhancement laws. The expert will then create a solid defense to reduce the risk of a judge imposing additional penalties. If you are arrested for an alleged gang crime, your best odds of enjoying a suitable outcome is to hire a lawyer that can compare both laws and come up with a fresh yet effective way to beat gang involvement allegations.
Contact a Long Beach Criminal Defense Attorney Near Me
Allegations of gang involvement during the commission of a crime can quickly increase your sentence by several years. It is imperative to hire an attorney that can defend you against charges for the underlying crime and gang affiliation claims. At Long Beach Criminal Attorney, we understand the laws governing gang crimes and the severity of the penalties a judge can impose. If you face gang crime charges in Long Beach, CA, we can help you build a solid and strategic defense with the best odds of prevailing in court. Call us at 562-308-7807 and let our team of experienced attorneys provide result-driven legal representation that can have your charges dismissed or reduced. We offer 100% free and confidential consultation!