Penal Code Section 186.22, California's Street Terrorism Enforcement and Prevention (STEP) Act, addresses criminal street gangs and their activities in California. This law imposes stiff penalties to combat illegal activities associated with gangs.

A criminal street gang is an organized group of individuals, typically three or more, whose primary activities involve criminal acts. These gangs often operate within specific geographic areas, like neighborhoods or communities, and are recognized for their involvement in illegal activities, repeatedly displaying patterns of criminal gang behavior. This pattern entails committing two or more distinct criminal offenses. These include drug trafficking, robbery, assault, murder, extortion, and other illegal acts.

Involvement in gang-related activities leads to enhanced penalties. These additional penalties are imposed in addition to those stipulated under the relevant statutory provisions for the underlying offense. As a result, it is crucial to treat these charges with the utmost seriousness and consider retaining the services of a skilled Bakersfield criminal defense attorney to navigate the legal complexities effectively. Attorneys at California Criminal Lawyer Group break down the gang enhancement as per PC 186.22 below.

Participation in Gang Activities

Participating in gang-related activities, as outlined in PC 186.22 (California's STEP Act), involves active involvement or association with a criminal street gang. You have to actively promote, further, or assist in felonious illegal actions carried out by gang members.

Here are key issues the courts look out for when determining if your penalties should be enhanced:

  • Active Involvement

You do not need to hold formal membership in the gang to be considered for participation in gang activities. Actively participating, including collaborating with gang members in criminal activities, is sufficient for legal scrutiny. This involvement is not passive or superficial. Instead, it signifies your active and direct engagement in the gang's criminal activities rather than being a passive or nominal member.

Having tattoos associated with the gang or being a former gang member can also mean active participation.

  • Knowledge Requirement

You must know that the gang you are associated with engages in a pattern of criminal gang activity. This awareness is fundamental for establishing your legal culpability.

  • Promotion or Assistance

Participation entails your active endorsement, advancement, or support of the criminal activities conducted by gang members. This could include strategizing, aiding, or directly participating in crimes linked to the gang's objectives.

Per PC 186.22(g), the terms "benefit, promote, further, or assist" take on specific meanings concerning the conduct of individuals within a criminal street gang. These actions must provide tangible and shared advantages to the gang's members beyond merely enhancing the gang's reputation. Examples of such benefits include:

  • Financial gain or motivation — Engaging in actions that yield monetary profits or financially support the gang's operations.
  • Retaliation — Participating in activities aimed at seeking retribution against individuals or groups perceived as rivals or enemies of the gang.
  • Targeting rivals — Taking measures to harm or disrupt the activities of other gangs or groups considered adversaries to the gang.
  • Intimidation or silencing — Employing force or threats to intimidate or silence potential witnesses, informants, or individuals who could pose a threat to the gang's interests.

The courts will only deem you a gang member if prosecutors establish the three key issues as true.

A Pattern of Criminal Gang Activity

Engaging in a pattern of criminal gang activity involves committing at least two separate criminal offenses. Importantly, these offenses must not be isolated incidents. They should form part of an ongoing series of unlawful actions by gang members. These criminal acts are specifically connected to or associated with criminal street gang members.

It is worth noting that every gang member does not need to participate in each of these offenses. However, a clear and tangible link between the gang and criminal activities should exist. Furthermore, these criminal acts must serve a common purpose or benefit the gang. They should go beyond the individual reputations of their members. This benefit could include financial gain, retaliation against rival groups, or the intimidation of witnesses or informants.

The list of crimes that can lead to an organization being classified as a criminal street gang is extensive. It includes grave offenses like assault, robbery, homicide, drug trafficking, and more. Penal Code 186.22 specifically addresses gang-related activities and is considered a serious crime. A conviction under this statute can result in significant legal consequences, potentially including jail time.

Moreover, it is important to note that under PC 186.22, possessing firearms can also contribute to classifying an organization as a criminal street gang. The list of related offenses includes:

  • Shooting at inhabited structures or vehicles,
  • Drive-by shootings.
  • Torture.
  • Arson.
  • Intimidation of witnesses or victims.
  • Burglary.
  • Grand theft.
  • Credit card theft.
  • Rape.
  • Looting.
  • Carjacking or car theft.
  • Extortion.
  • Threats of bodily harm.
  • Counterfeiting.
  • Felony vandalism.
  • Obtaining fake IDs.
  • Kidnapping.
  • Credit card theft.
  • Mayhem, and
  • Money laundering.

These crimes are commonly associated with gang activity and can result in enhanced penalties when committed by a gang.

Gang Sentencing Enhancement Penalties

Participation in a gang is a wobbler offense, meaning prosecutors can pursue a misdemeanor or felony charge.

If convicted of a misdemeanor violation, you will face the following penalties:

  • A maximum of one year in jail.
  • A maximum fine of $1,000.

If convicted of a felony violation, you will face the following penalties:

  • 16 months, 2, or 3 years in prison.
  • A maximum fine of $10,000.

Under PC 186.22(b), you can face an increased sentence upon conviction if the prosecutor can establish the elements of this enhancement:

  • You committed or attempted to commit a crime to benefit the gang, follow the gang's directives, or have an association with the gang.
  • You demonstrated the intent, when the crime occurred, to support, encourage, or further the criminal endeavors of gang members.

Note: California law does not mandate active gang membership at the time of the offense to qualify for an enhanced sentence.

Increased Penalties Under Gang Enhancements

The duration of a PC 186.22 gang enhancement's impact on a prison sentence depends on the nature of the underlying crime for which you were convicted.

If the conviction is for a misdemeanor violation, you could be looking at:

  • Up to 1 year in jail with a mandatory minimum of 180 days as part of the enhancement.

For felony convictions, you will be subject to an enhancement sentence alongside the penalty for the primary offense. This enhancement can result in:

  • An additional 2, 3, or 4 years in prison.

  • Serious Felony

When a felony is classified as a "serious felony" as defined under PC 1192.7(c), individuals convicted of such felonies could receive an extra five years of imprisonment as a sentence enhancement.

  • Violent Felony

In a violent felony case outlined in California Penal Code 667.5(c) PC, individuals could be subject to an extra ten years of incarceration in a state prison.

  • Seven Years to Life

In specific situations, like when the underlying felony is either:

  • Extortion by force or fear — Penal Code 518 or
  • Threatening a witness — Penal Code 136.1,

a conviction can result in an extra seven years to life in prison as part of a sentence enhancement.

  • Fifteen Years to Life

If you are found guilty of these offenses:

  • Home invasion robbery under California Penal Code Section 213(a).
  • Carjacking.
  • Shooting at an occupied dwelling or vehicle.
  • Committing a drive-by shooting resulting in bodily injury or death, according to Penal Code Section 12022.55,

you could potentially receive a sentence enhancement of fifteen years to life in prison in addition to the sentence for the felony you were convicted of.

Should you receive a life sentence due to a PC 186.22(b) sentence enhancement, you will only be considered eligible for parole once you complete a minimum of fifteen years in state prison.

Note: If the crime described in PC 186.22(a) takes place on school premises or within 1,000 feet of:

  • A public or private elementary.
  • Vocational.
  • Junior high or high school, during school hours, or when minors are present for school-related activities,

it will be considered an aggravating factor when deciding the sentence for the crime described under the statute. Simply put, committing a crime per PC 186.22(a) near a school when kids are around or during school hours will lead to a harsher penalty.

Fighting Gang Enhancements

The California Criminal Lawyer Group will assist you in challenging gang enhancements by employing a range of legal defenses and strategies. These defense strategies are highly effective when presented before juries, prosecutors, and judges in pursuit of charge reductions and dismissals. They are:

  • No Underlying Offense

The gang enhancement law is relevant only when you have been convicted of a felony, for example, felony grand theft or extortion. One avenue to avoid this enhancement is to prove that you did not commit any felonies initially.

Our strategy in bolstering this stance focuses on convincing prosecutors that their evidence falls short of establishing your guilt beyond a reasonable doubt. This involves pointing out weaknesses in their case, for example, by demonstrating that the video footage was unclear or showing inconsistencies in eyewitness statements.

  • You Are Not An Active Gang Member

This defense challenges accusations under California Penal Code Section 186.22(a) by asserting that you were not actively involved in the gang's criminal activities during the alleged offense. The key elements of this defense include the following:

  • Lack of active participation — This assertion requires proving you had minimal or no involvement in the gang's criminal activities at the time of the offense.
  • Social association — It highlights that merely associating with gang members, even if they were friends, does not necessarily imply active gang membership or criminal involvement.
  • No ongoing gang affiliation — Evidence could show you were not an active gang member when the alleged offense occurred, possibly by demonstrating your distancing from the gang or past involvement.
  • Challenging evidence — We can contest the prosecution's evidence, including eyewitness testimonies, surveillance footage, or documentation linking you to the gang or the crime.
  • Focus on legal elements — The prosecution must prove not only the felony but also your active gang membership and participation in gang-related criminal activities to secure a conviction under PC 186.22(a).

The success of this defense depends on factors like the strength of the evidence, an attorney's ability to cast doubt on your active gang involvement, and the persuasive arguments presented during your defense.

  • You Were a Free Agent

This defense asserts that you did not commit a felony under the gang's direction, for their benefit, or in connection with them. Even if you are a gang member, this defense maintains that the prosecution must convincingly prove that you acted on the gang's behalf and not as an independent agent at the time of the crime.

This defense encompasses several key elements:

  • Absence of gang control — We will provide evidence showing that the gang did not direct or exercise control over your actions when you committed the offense.
  • No gang benefit — The defense will argue that the crime did not contribute to the gang's interests or benefit them. Your actions were not part of any coordinated effort with the gang.
  • Limited gang participation — We will emphasize that your involvement in the gang played a minimal or insignificant role in the commission of the offense.
  • Prosecution's responsibility — It is crucial to highlight that the burden of proof lies with the prosecution. They must prove, beyond a reasonable doubt, that your actions were undertaken in association with the gang and for their advantage.

If the prosecution cannot convincingly establish that you acted on behalf of the gang, it could significantly weaken their case against you.

  • Prosecutorial Overreach in Imposing Gang Enhancements

Prosecutors have occasionally admitted to wrongly applying gang enhancement charges, typically when there is not substantial evidence of gang involvement. Prosecutors use this tactic to pressure individuals facing charges into accepting plea deals.

It is necessary to consult with your Bakersfield criminal defense attorney before making any decisions, mainly when concerns about gang enhancement charges arise. This is the surest way to protect your rights and interests.

Skilled defense attorneys can have a significant impact on your case. They possess the expertise to:

  • Demand a comprehensive examination of the evidence against you or
  • Examine whether the prosecution's claims of gang involvement are valid or merely strategic maneuvers.

Your attorney's primary role is ensuring you are fully informed and safeguarded throughout the legal proceedings. This will allow you to make decisions with a clear understanding of your situation and available legal options.

  • Bifurcated Trial

A bifurcated trial is a legal proceeding that divides into two distinct phases or stages to ensure fairness and clarity in addressing complex issues. When facing gang affiliation allegations, this approach can be a strategic move by your criminal defense attorney.

Phase One

In the initial trial phase, the sole focus is on the alleged felony crime itself. The prosecution presents evidence and arguments to establish your guilt regarding the underlying felony charge. The jury's task is determining whether you are guilty of the primary crime without considering gang affiliation allegations.

Phase Two

If you are convicted in the first phase for the underlying felony, a second trial phase follows. This phase addresses the gang enhancement allegation under Penal Code 186.22(b). Here, the prosecution must prove that you committed the felony crime in connection with a street gang.

This separation aims to prevent potential bias or prejudice if the jury hears about gang affiliation allegations before determining guilt for the underlying crime. It ensures a more focused and fair evaluation of the evidence while safeguarding your rights.

Your defense attorney can request a bifurcated trial through a formal motion. Notably, the jury will only hear about the gang enhancement allegation if you are found guilty of the underlying felony during the first phase. This approach upholds the integrity of the trial process and ensures that both aspects of your case receive proper consideration.

Frequently Asked Questions

  • Can I be charged with gang affiliation enhancement if I join a group or club without knowing about criminal activity?

Indeed, it is possible. According to California Penal Code Section 186.22(f), a criminal street gang is officially described as a continuing organization comprising three or more individuals who share a common name, identifying symbol, or mark. One of its primary activities must involve committing specific crimes, with its members participating in criminal activities individually or collectively.

Should the group or club you are affiliated with meet these precise criteria, there is the potential for you to be charged with gang affiliation enhancement.

It is worth emphasizing that every case is distinct, and the context surrounding your association with the group or club will play a pivotal role in determining the likelihood of facing these charges.

  • Can I be convicted of gang affiliation enhancement if I am a street gang member but my crime is not gang-related?

Avoid admitting to gang membership. This admission can lead to legal consequences, including potential criminal charges in California.

Regarding the possibility of being convicted of gang affiliation enhancement when your crime is not explicitly gang-related, it is essential to understand that California law requires the prosecution to establish a connection between your offense and a criminal street gang. If you are a known member of a street gang and the prosecution can demonstrate that your illegal activity somehow benefited, was associated with, or was directed by the gang, you could be subject to a gang affiliation enhancement.

The critical factor is whether the prosecution can prove this connection between your crime and the gang, even if your offense was not directly linked to gang activities. Your defense attorney could work to challenge this connection, asserting that your actions were independent of any gang involvement.

Ultimately, the outcome will depend on the unique circumstances of your case, the evidence presented by the prosecution, and the effectiveness of your defense strategy.

  • Could I be convicted of gang affiliation enhancement if I was once a gang member, but the gang did not influence my crime because I am no longer a member?

Whether you could face a conviction for gang affiliation enhancement despite having been a former gang member with no influence on your crime due to your dissociation depends on the specific circumstances of your case. Remember, the focus is on whether you committed the felony for the benefit of, in association with, or at the direction of a criminal street gang at the time of the offense.

However, if you are no longer affiliated with any street gang, we can leverage this as a defense in your case. Our team can work diligently to establish your disassociation from the gang, presenting evidence and arguments to demonstrate that you had severed all ties and associations with the gang before the alleged crime.

This evidence includes:

  • Disassociation from the gang — If you can effectively demonstrate that you had disassociated from the gang, and there was no ongoing involvement or association with the gang when the crime was committed, it could weaken the prosecution's argument for a gang affiliation enhancement.
  • Evidence of disconnection — Your defense attorney can present evidence supporting your claim, for example, statements or actions indicating that you had left the gang, cut ties with gang members, or reported your disassociation to law enforcement.
  • Changed lifestyle — Evidence showing a significant change in your lifestyle, for example, pursuing lawful employment or educational opportunities unrelated to the gang, can further support your claim that the gang did not influence your actions during the crime.
  • Witnesses or alibi — If you have an alibi or witnesses who can testify that you were not in contact with gang members or engaged in gang-related activities around the time of the offense, it can strengthen your defense. These witnesses can provide valuable testimony to corroborate your disassociation from the gang.

Contact an Experienced Bakersfield Criminal Defense Attorney Near Me

If you are under arrest and confronting charges that could include a gang sentencing enhancement, talk to the Bakersfield attorneys at California Criminal Lawyer Group. We are well-versed in dealing with cases involving gang enhancements. Our input will wield considerable influence over the outcome of your case.

Contact us at 661-750-8230 to initiate discussions about your circumstances and formulate your defense plan.