California implemented a Street Terrorism Enforcement and Prevention Act to protect citizens from intimidation and fear caused by violent groups. The law makes it an offense for anyone to partake in a street gang's activities or do anything that aids their activities. If you participate in gang activities or act in a way that enhances gang activities, you will be arrested and charged under 186.22 PC of California.

The state imposes harsh legal penalties for individuals who get convicted of gang enhancement in California. If you or your relative is facing criminal charges and gang enhancement allegations, it is wise to seek legal guidance. At Orange County Criminal Lawyer, we will work with you to ensure your case's favorable outcome.

Overview of Gang Enhancement in California

California PC 186.22 makes it a crime for anyone to be a street gang member or participate in their activities. Although gang activity is an offense on its own, it is always a sentencing enhancement for other crimes in California. To get convicted for participation in street gang activities, the prosecutor needs to establish these facts:

You Participated Actively in a Street Gang. 

You are considered an active member of a criminal gang even when you did not devote all your gang effort. Also, a person who is not a gang leader could face charges for participation in the gang.

You Knew of the Pattern of Criminal Conduct Partaken by the Group

According to California's gang enhancement law, a gang is an organization of more than three people that identifies itself with a familiar name. Also, a street gang must include members who actively participate in criminal gang activities. Criminal conduct is a pattern when crimes are committed on separate occasions within three years. Before securing a conviction for gang activity involvement, the prosecutor needs to establish your association with the gang. However, the prosecution doesn't need to show that the offenses you committed were related to the gang.

Some of the offenses that help establish a criminal pattern for a gang include:

  • Drug offenses include possession. Sale use or transport
  • Robbery and theft
  • Felony vandalism
  • Murder
  • Assault

Your Conduct Promoted or Aided a Gangs Activities

When establishing your guilt under 186.22 PC, the prosecutor needs to show your active and direct participation in a felony offense or aided the felony. Also, it should be clear that you committed the crime together with some other gang members. However, you can also receive a gang enhancement even when you acted on your own.

If you face criminal charges for participating in street gang activities, you may face a felony or misdemeanor conviction. For a misdemeanor conviction, the penalty will be a one-year jail sentence and fines amounting to $1,000. If Penal Code186.22 is a felony, a conviction will attract a prison sentence not exceeding three years and court fines not exceeding $10,000.

California Sentence Enhancement Under Penal Code 186.22

Should you find yourself facing charges for a criminal offense in California, you might as well receive a sentence enhancement for aiding gang activities. This will be the case if the prosecutor can prove without a reasonable doubt that you acted in a way that would directly benefit or enhance a gang's criminal conduct. However, they must also prove that you are guilty of the underlying crime before the sentence enhancement. The increment in your penalties for aiding a gang will depend on the underlying offense. Offenses that receive gang enhancement penalties are divided into diff categories:

Generic Felonies

Should you get arrested and convicted for a felony where your active involvement in a gang is clear, you will face an additional sentence of up to four years. The number of years added to your sentence will depend on the offense you got convicted for committing. The other punishment for gang enhancement is served after the penalties for your underlying felony conviction. If you face criminal charges that the court is linking to gang activities, you need to have a strong legal defense by your side.

Serious Felonies

For gang enhancement purpose, serious felonies may include:

  • Drug crimes
  • Making criminal threats
  • Assault by use of deadly weapons
  • Assault committed against a police officer

If you are subject to gang enhancement penalties for a serious felony, your prison sentence will be added five years.

Violent Felonies

Violent felonies are serious offenses such as murder, sex crimes, or severe bodily harm. Individuals who commit these crimes while aiding street gang activities will receive a sentence enhancement. If you get convicted for an offense that falls under the classification of violent felonies, your prison gets enhanced with not more than ten years. 

Specific Felonies

Some felony offenses attract a gang enhancement sentence of up to fifteen years in prison, and they include:

  • Robbery did through a home invasion
  • Carjacking
  • The shooting of an inhabited area
  • Shooting a firearm in an occupied vehicle

If you get a conviction for harassing a witness or extortion done to aid gang activity, you will face a seven-year sentence enhancement. If the underlying offense you get convicted of attracts a life sentence, you will face a life sentence. In the case where you can earn parole, you cannot be released until you complete fifteen years in prison.

Misdemeanors

Under 186.22 PC, a person who has committed a misdemeanor offense could be charged with a felony when they acted with or assisted a street gang. Instead of receiving misdemeanor penalties of one year in jail, you will face up to three years in prison. However, if this is the case, the prosecutor will not be allowed to impose a sentence enhancement

If the prosecutor proves that you committed an offense in connection with a criminal gang, they will consider the following factors when setting the sentencing enhancement:

  1. Whether or not the crime occurred in school is considered. Under the STEP Act, the judge will consider whether the alleged crime happened in the school zone while learning was continuing. If you committed a crime around minors, that fact might influence the courts' diction on your sentence's length.
  2. Enhancement of Multiple Gangs. California criminal law will impose a single sentence enhancement for one offense. This will be the case even when your actions result in different criminal charges. However, if the crimes you committed involved separate victims over a long period, a gang enhancement sentence will apply to all the crimes.
  3. With the court's discretion, the judge can eliminate a gang enhancement sentence. Sometimes the court may strike out your sentence enhancement, and you will only face penalties for the offense you committed. However, to eliminate this enhancement, competent legal guidance and a criminal attorney's input is required.

Relationship between Penal Code 186.22 and Other Enhancements

Gang enhancement is not the only form of sentence one can receive after a conviction in California. The following are the two standard enhancements that apply in the place of gang enhancement:

1. Personal Use of Firearms

Sentencing enhancement for the personal use of a gun often applies to gun charges. The enhancement is charged by the prosecutor and is added to your original penalties. This enhancement applies to an individual who commits an offense, and you are found guilty under the law. For this enhancement, the use of a firearm will not only apply to fire. Using the weapon to threaten or inflict fear on others could attract the enhancement. The severity of the enhancement increases if the crime you committed is a severe drug crime, sex crime, or violent felony.

Sometimes, a criminal offense in California could attract both street gang enhancement and firearm enhancement. If you get subjected to firearm enhancement, you will face penalties for your crime and a consecutive sentence for using a gun. After a conviction for a drug offense, the firearm enhancement will be a five years prison sentence. For crimes such as assault and carjacking, the sentence enhancement will be three years in State prison.

When you use a firearm to commit a sex crime, you will face a felony conviction. A ten years prison sentence will also be added to your felony penalties. Facing a firearm and gang enhancement could see you spend a significant amount of time in prison. Therefore, legal guidance from an attorney will be crucial.

2. 10-20-life Law

Under 12022.53 PC, the law stipulates a "Use a gun and you are done" sentence enhancement. The use of a gun when committing a felony will attract a ten years sentence enhancement. Firing the weapon in the midst of committing the crime will cause you an additional sentence of twenty years. Causing severe bodily harm or death of another individual will subject you to twenty-five years or life sentence enhancement. The additional sentence in the 10-20-life law will be served consecutive to the other penalties.

Felonies that are likely to trigger 10-20-life enhancement include:

  • Robbery with violence
  • Murder
  • Kidnapping
  • Carjacking

The 10-20-life enhancement relates in the following ways with 186.22 PC:

  • An individual who discharges a firearm while committing a crime to benefit a gang will suffer enhancements for both PC 186.22 and the 10-20-life.
  • A suspect in a felony where the other involved party fires a gun while committing the crime will suffer the enhancement of your penalties. If you didn't fire the gun, you could not receive multiple enhancements for your felony offense.

Before the enhancement is imposed, the prosecutor needs to prove that you fired a gun while committing the crime. With help from your criminal lawyer, you can disregard the prosecutor's evidence that you fired the weapon and escape the enhancement.

Defenses Effective in Cases Involving Gang Enhancement

Battling criminal charges is often devastating. An addition of gang enhancement to the situation will cause psychological distress for you and your family. This is because of the long period you are likely to send in prison if you get convicted. Fortunately, there are several ways through which your defense attorney can help you fight gang-related charges, including:

Fight the Felony Charges You are Facing

You will only suffer a gang enhancement sentence if you get convicted for another criminal offense in California. You can avoid the enhancement if you clear yourself from the underlying felony. There are several elements that a prosecutor needs to prove when establishing your guilt for a felony offense. In most cases, there lacks enough evidence to establish that you committed the crime without a reasonable doubt. 

If you can prove that you did not commit the crime and avoid a conviction, you will evade the gang enhancement sentence. The stakes are always high when you are facing charges for a gang-related crime. Therefore, you should have topnotch legal guidance and representation.

Disregarding your Activities in the Gang

Being an active member of a street gang is a vital element that a prosecutor should establish before you get a sentence enhancement. If you aren't an active member, the prosecutor may find it challenging to develop their facts. When it is not clear that you actively participate in a gang's criminal activity pattern, you cannot be subjected to a gang enhancement. A competent attorney will help you find fault in the prosecutor's testimony giving you a chance to escape additional penalties.

Argue that You Did Not Intend to Benefit a Gang

You cannot be subjected to sentence enhancements under 186.22(b) unless the prosecutor proves your intention to support a street gang when you acted. Even when actively participated in the gang, the current crime that you committed must have been directed to the benefit of the specific criminal group. Sometimes you may commit an offense such as robbery for self-benefit and not an illegal group even when you are a member.

Claim that The Prosecutor is illegally imposing a Gang Enhancement 

California law on the use of firearms and street gangs is complicated. Even an experienced prosecutor may fail to understand the statues and file illegal charges. If you face gang-related charges, your attorney should study the case to ensure they are right under the circumstances. By proving that the offense you committed does not guarantee an enhancement, you can avoid the harsh consequences.

Imposing the Enhancement is a Violation of Justice

Even when you receive a sentence enhancement for aiding gang activities, the court could strike it when justice demands. However, this will occur under rare circumstances where legal scholars think the enhancement is too severe. By providing more information on your family, job, and contributions to society, the judge may get convinced to strike a gang enhancement from your sentence. When you are presenting this argument, guidance from an attorney is crucial to help you understand what is right under the law.

Comparison Between Federal and State Gang Laws

Federal law makes it an offense to commit a crime while aiding the activities of a gang. When charged by the federal law, gang members will face a harsher penalty than non-gang members for a similar offense. Under the criminal gang statue, the prosecutor will charge you with racketeering for the following reasons:

  • An attempt to destroy and disrupt gang structures
  • To prosecute the gangs that are involved in drug-related offenses
  • An effort to ensure severe punishment for gang members that partake in violent crimes

When you commit an offense connected with a criminal gang, the government chooses to charge you under state or federal law. When a crime is prosecuted under federal law, 18 USC 521 Statute imposes a sentence enhancement after a conviction.

You will be punished under RICO if you commit more than two offenses within ten years while enhancing a gang. Some of the crimes classified under RICO include:

  • Kidnapping
  • Gambling
  • Arson
  • Murder
  • Robbery
  • Drug trafficking 

As a penalty for violations under RICO, the court will impose a twenty years to life imprisonment. Also, you may be required to pay fines and lose all profit accrued from illegal activities.

VICAR seeks to punish individuals who partake in violent crimes while attempting to enter a criminal group. Crimes that qualify for a VICAR sentence may include maiming, an assault that results in severe bodily harm, and murder. When you are convicted under VICAR, your punishment will be a prison sentence not exceeding thirty years and fines not exceeding $250,000. Competent legal guidance will go a long way for you while you are battling federal charges.

Difference Between California and Federal Gang Crimes

Federal law has a different definition of a criminal enterprise different from that of the street gang. Also, the crimes stipulated under federal law are specific. The groups that commit violent crimes or drug-related crimes are considered enterprises under federal law if their activities affect foreign commerce. The sale and possession of drugs that are imported is a crime that gets charged under federal law.

The main difference between charges filed in a state court or federal court is that a federal court's conviction requires serving a full sentence. However, if you get convicted for gang enhancement in California court, you may get parole and serve a lesser sentence. If you face charges under California law, the prosecutor may threaten to file a federal case against you. This will be used as a way to make you plead guilty for an underlying offense.     

Federal law provides an enhancement of penalties with ten years for a gang member who has had a prior conviction for a severe federal offense. For this enhancement, the alleged gang must comprise five or more individuals whose primary goal is to carry out criminal activity. The prosecutor must also show that you took part in felonious crimes to aid the gang or keep your group's position. In most cases, the federal gang enhancement is limited since the above elements must be proven without reasonable doubt.

If you are facing federal charges, you can present defenses similar to those of Penal Code186.22. However, you can also you the following arguments to avoid federal gang enhancement:

  1. The group you aided doesn't qualify the definition of a gang under RICO. Before you get a gang enhancement under Federal law, it must be clear that your actions were aimed at benefiting a street gang. Also, you must be an active participant in the criminal group. A criminal gang is a group as a defense to your case. You could argue that the group you are associated with doesn't meet the definition.
  2. The gang does not meet the definition of continuous criminal activity. A group is considered a criminal gang by federal law if the members exhibit an illegal activity pattern. Before a federal enhancement gets imposed, it must be clear that the group was partaking in continuous criminal activity. If the gang that you are accused of enhancing does not qualify to be a street gang according to their activities, you can evade the federal gang enhancement.
  3. You received an expungement. You receive a sentence enhancement after a conviction for another offense. An expungement of your criminal record eliminates all the legal consequences that accompany the sentence. If you can get an expungement, you will have a chance to evade the federal gang enhancement.

Fight Gang Enhancement with Guidance from a Criminal Lawyer Near Me

Committing a criminal offense while aiding street gang activities will attract additional charges for gang enhancement. Crimes that are done in connection with street gangs have serious legal consequences in California. If you get convicted for a gang-related offense, you will face penalties for the violation you committed and your gang enhancement activity.

This could mean an additional of up to ten years in prison as a sentence enhancement. If you face charges related to a street gang, you will require legal advice from the Orange County Criminal Lawyer. Our top-notch lawyers understand that your freedom is on the line and will help you fight to reduce a conviction's consequences. If you are charged in Orange County, CA, you can call us for help. Contact us today at 714-262-4833 and allow us to guide you.

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