The STEP Act (Street Terrorism Enforcement and Prevention Act) in California is broad and intricate. One of the Act’s subsections is Penal Code 186.22, designed to enact harsher punishments to defendants accused of gang crimes and activities. When a judge enforces the Code, two individuals charged with a similar crime may face entirely different custodial sentences. If you or a loved one is battling criminal charges and additional gang enhancement allegations in Long Beach, CA, turn to the Long Beach Criminal Attorney to consult with a seasoned and knowledgeable legal representative. Our team has the much needed prosecutorial experience to provide reliable assistance, irrespective of how bad your situation seems.
Through the legal concept “enhancement,” a judge can pass enhanced sentencing under California’s state laws if a crime meets certain conditions. Enhanced sentencing is an entirely different sentence that can run anywhere between 2 years to 25-to-life. Because the stakes are high, you need a relentless specialist with aggressive lawyering skills.
What is Penal Code 186.22 PC Gang Enhancement?
Penal Code 186.22 PC gang enhancement is the added penalty to the initial crime of acting for the benefit or in association with a criminal street gang. The imposed additional punishment runs alongside the initial sentence, and the overall length of a sentence will depend on the severity of the purported crimes.
With gang enhancement, a defendant faces the risk of serving a longer sentence, or rather two sentences instead of one. A judge can enhance sentencing as long as the prosecutor can prove all the elements to satisfy specific conditions as stated in the law.
Penal Code 186.22 PC comprises of two sections:
- Penal Code 186.22(a)
- Penal Code Section 186.22(b)
While Penal Code 186.22(a) prohibits joining, associating with, and participating in street gang criminal activities, Penal Code Section 186.22(b) authorizes a judge to impose enhanced sentences when a defendant commits a felony intent on benefitting a gang.
Elements of Penal Code 186.22(a)
The prosecution must prove that a defendant participated in felonious conduct to promote gang activities. Some of the elements that prove a violation of Penal Code 186.22(a) include:
Active Participation in Street Gang Activities
In California, gang-related activities are treated with utmost seriousness. The prosecution has to prove your association and participation in gang activities, and they can do this by merely pointing out your gang tattoo. Evidence showing your association with a gang member happened almost the same time as a crime can also be used against you.
The prosecution can deem you an active participant in a gang even if you are not an official gang member. Some of the facts used to stamp down these allegations include:
- Familiarity with a gang and its activities
- Former gang membership
- Close friendships with a gang
- Participating in a crime that resembles crimes enacted by gang members
- Having body piercings or tattoos similar to those of gang members
Familiarity With a Gang and Its Activities
Knowledge of a gang and its activities proves active participation and is also an element necessary to show a violation of Penal Code 186.22(a). You cannot be convicted if you had no knowledge that a specific group engages in criminal activities.
Promoting, Furthering, or Assisting Felonious Gang Conduct
It is also necessary for the prosecution to demonstrate how your activities benefitted a specific gang. This can be done by proving:
- A gang member committed a crime
- You had knowledge that the member in question was intent on committing the crime.
- You offered assistance in words or actions that proved helpful in executing the crime.
Committing a Felony in Person, or the Company of a Gang Member
Because of the vague wording of this statute, it is interpreted differently by different courts. Some courts only convict defendants who act with several or one gang member when committing a crime. Other courts can convict you as long as you are a gang associate or member and at least two of Penal Code 186.22(a) elements are satisfied.
You need to enlist a seasoned criminal defense attorney who can table strong arguments on your behalf. Bear in mind that the judge’s hands are tied if the prosecution cannot sufficiently demonstrate your street gang association by proving the elements mentioned above.
Elements of PC 186.22(b), Gang Enhancements
A gang enhancement adds to the sentence of a person convicted of committing a felony crime under California’s Penal Code Section 186.22(b). For a judge to impose the added sentence, the prosecution must prove three elements beyond a reasonable doubt. These elements include:
You Committed a Felony Crime
Penal Code Section 186.22(b) sentence enhancement only applies to gang felony crimes. This makes it imperative for the prosecution to first convict you of committing a felony crime listed in California’s Penal Code Section 186.22(e).
The Committed Crime Was Gang-Related
You don’t need to be a gang member for the courts to subject you to sentence enhancement. However, the prosecution must prove that the felony you committed was affiliated with a street gang or a gang member.
Intent to Assist, Further, or Promote Criminal Gang Conduct
The prosecutor doesn’t need to prove your aim to promote a specific street gang. You may qualify for sentence enhancement as long as they can prove that your offense was in the association, for the benefit, or at the direction of any criminal street gang.
With the ever-increasing street gang crimes in California, the courts have a mandate to make examples out of offenders and generally dissuade the public from gang-related crime. Fortunately, you can save yourself from facing the full wrath of the law by having a skilled and dedicated attorney in your corner.
How Is The Severity of a Crime Determined?
Gang crimes are categorized into four classes. The underlying crime to which you are convicted will help establish the severity of a crime and the enhancement a judge needs to impose. Generally, an enhanced sentence will pass an additional imprisonment term of 2 to 4 years when condemned for committing a felony.
Here are the four categories of gang crimes:
Serious Felonies
In California, there is a long list of crimes that fall under “serious” felonies. An excellent example of such a felony is Penal Code 246, shooting at an occupied dwelling or car. If the initial crime is a serious felony, a judge can pass on a sentence enhancement of 5 years.
Violent Felonies
“Violent” felony convictions can attract an enhanced sentence of 10 years. Just like serious felonies, numerous crimes fall under this classification. An excellent example of a violent felony is Penal Code 187, murder.
Specific Felonies
These types of felonies include Penal Code 213, home invasion robbery, Penal Code 519, extortion, and Penal Code 136.1, threatening victims and witnesses, just to mention a few.
Specific felonies typically attract seven years to life imprisonment, and a judge can add 15 years to a sentence if a defendant also faces gang enhancement. When the initial felony is punishable by life imprisonment, a defendant cannot qualify for California parole until the enhanced sentence (15 years) is served.
Misdemeanors
Under California’s Penal Code 186.22(d), a prosecutor can change a misdemeanor into a felony under certain circumstances. Some of the requirements that must be satisfied for a misdemeanor to change into a felony include:
- A defendant commits a crime for the benefit or in association with a criminal street gang.
- The crime is committed with the purpose of furthering, promoting, or assisting criminal activities conducted by gang members.
In this case, merely converting a misdemeanor into a felony is considered an enhancement. This means a judge cannot add enhancement sentencing for serious, violent, or specific felonies.
Other Considerations
When dealing with street gang crimes, the sentencing is highly at the judge’s discretion. Apart from considering the law, a judge may also take into account other aspects before passing a sentence designed to rehabilitate the accused and at the same time dissuade the general public from committing similar offenses.
Other aspects that may affect the sentencing enhancement terms include:
Proximity to School Zones
According to the STEP Act Section 186.22(b)(2), a defendant commits a greater crime if it takes place within 1,000 feet of a school zone. A crime might attract even greater sentencing if it took place when a facility is actively being used by minors, such as during the regular school programs.
In the “best interests of justice,” the judge is in such a case allowed to use his or her moral judgment to determine the most appropriate sentencing enhancement.
Multiple Gang Enhancements
In California, one crime can attract multiple charges. However, the laws only allow a single sentence enhancement for each offense. While this is the case, a judge can impose more than one sentencing enhancement if a defendant is accused of multiple street gang criminal activities. Each crime is unique if it is separated by distance and time and possibly involves multiple victims.
Best Defense Strategies for Gang Participation and Gang Sentencing Enhancement
STEP Act charges are not easy to defend. It remains imperative to find a dedicated and aggressive attorney to help you fight Penal Code 186.22(a) gang participation charges or Penal Code 186.22(b), gang sentencing enhancement. Some of the defenses that may work include:
No Gang Association
The prosecution must prove you are a gang member or have close affiliations with a gang member. In this case, your lawyer may argue that you are not a member of a specific gang and don’t engage in any of its activities.
No Familiarity With the Criminal Activities of a Gang
The prosecution cannot allege gang participation if they cannot prove that you know about a particular gang’s existence and its activities. This is often a good defense, especially if you don’t spend too much time with gang members and don’t have a gang tattoo or body piercing.
You Took No Part in Promoting Gang Activities
The prosecution needs to prove that you committed a crime to promote a gang by eliminating its competition or perhaps enhancing its reputation. Alternatively, the prosecutor needs to demonstrate that your actions or words aided a gang member in committing a crime.
Your lawyer can deny your involvement in abetting a gang member or can claim that even if you committed a crime, you did so as a free agent. A free agent is someone who commits a felony that is not for the benefit, in the association, or at the direction of a criminal street gang.
Bifurcated/Split Trial
Gang affiliation allegations can take a toll on your case’s outcome, mainly if a jury determines it. Your attorney can file a motion requesting the courts for a bifurcated trial. This allows your trial to take place in two sections.
The first section will focus primarily on establishing whether you are guilty of promoting, furthering, or assisting in felonious gang activities. If you are acquitted of violating Penal Code 186.22(b) (gang enhancement), then these allegations will not be brought up during the second section of the trial where the aim will be to establish street gang participation under Penal Code 186.22(a).
Change of Venue
Sometimes, the surest way of enjoying a suitable outcome is to have your trial from a different court. Even if gang involvement and enhancement allegations are false, you are still likely to be doomed if the jury comprises people living in your neighborhood. Between dreading police harassment and the fright of criminal street gangs, the jury’s opinion may be prejudiced.
Find a Long Beach Criminal Attorney Near Me
Gang affiliation enhancements can drastically increase your sentence or even confine you to the system for life. The best way to dodge sentence enhancement in Long Beach, CA, or at least tame its impact on your case is to contact us immediately if you are arrested or charged with committing a gang-related crime. At Long Beach Criminal Attorney, we give each case the dedication and attention it deserves. Let us use our skills to help you achieve the best outcome. For a free consultation, call us today at 562-308-7807.