California’s Gang Affiliation Sentencing Enhancement – Penal Code 186.22
In 1988, California legislators enacted the Street Terrorism Enforcement and Prevention (STEP) Act in response to widespread gang violence. California Penal Code Section 186.22 (f) defines a criminal street gang as
- An ongoing organization of 3 or more persons,
- With a common name, or identifying mark or symbol,
- Having as one of its primary activities the commission of the crimes listed,
- Whose members individually or collectively engage in criminal activity. 1
The list of crimes which can classify an organization as a criminal street gang is long, and includes the following:
- Drug trafficking offenses
- Shooting at an inhabited house or car
- Drive by shootings (shooting from a car)
- Intimidation of witnesses/victims
- Grand theft
- Possession of firearms (various charges)
- Threats of bodily harm
- Carjacking or car theft
- Obtaining fake IDs from the DMV
- Felony Vandalism (damages over $400)
- Credit Card theft
- Grand Theft
- Mayhem (maiming somebody)
- Money laundering
The Step Act provides that if you engage in any of the above crimes as a gang member or associate, or help a gang engage in those crimes, you can be sentenced for the crime, and receive an additional sentence because you helped or are affiliated with a street gang. The act also says that if it can be proven that you associate with a group whose members engage in the above acts, you could receive a harsher sentence if you are convicted of any felony crime, even a felony that is not on the list of crimes under Penal Code Section 186.22(e).
The law is complicated, and it has two parts. Penal Code Section 186.22 (a) makes it a crime to actively participate in a gang under the following circumstances:
- With knowledge that its members engage/engaged in a pattern of criminal activity, and
- Willfully promote, further, or assist felonious conduct by the gang members.
The courts define “active participation” as taking part in gang activity. You do not have to be a member of the gang, or a leader of the gang; you can be an associate. You know that the gang you associate with commits or has committed more than one crime, and you willfully help the gang by either committing a crime, or aiding and abetting a crime. 2
Penal Code Section 186.22(b) provides a sentence enhancement for committing a felony crime for the benefit of, at the direction of, or in association with a criminal street gang.
Prosecution for Violating PC 186.22
There are several elements that the prosecution must prove in order to convict you of either gang participation and promotion of felonious conduct—Penal Code Section 186.22( a), or the gang affiliation sentence enhancement—Penal Code Section 186.22 (b).
Elements of Penal Code 186.22(a)
In order to convict you of gang participation and promotion of felonious conduct, the prosecution must prove beyond a reasonable doubt that all of the elements of this crime are facts:
1. Active Participation in a Street Gang.
In order to prove active participation in a street gang, prosecutors must show that your association with gang members occurred “reasonably near the time of the crime.” 3 You do not have to be a gang member, and you do not even have to spend a lot of time with the gang. Active participation has been alleged by any of a number of facts, including the following:
- Having knowledge of gang activities;
- Committing a crime similar to crimes committed by known gang members;
- Having a gang tattoo;
- Being seen with members of a gang;
- Former membership in a gang; or
- Being on friendly terms with a gang.
The above facts are commonly used by prosecutors to charge defendants with active participation in a gang. But active participation is only one element needed to convict you of violating California Penal Code 186.22(a).
2. Knowledge that the Gang Engages/Engaged in a Pattern of Criminal Gang Activity
It has to be proven that you know the gang has engaged in or currently engages in criminal activity. If you did not know the group was involved in criminal gang activity, you should not be convicted of this crime.
3. Assisting or Promoting Felonious Conduct
The prosecution must also prove that you either assisted a felony by aiding and abetting or you committed a felony crime and you are a gang member or associate. It does not have to be one of the felonies listed in California Penal Code Section 186.22(e).
The prosecution must prove all of the following elements to convict you of aiding and abetting criminal gang activity:
- A gang member committed a crime.
- You knew the gang member was going to commit the crime.
- Before or during the commission of the crime, you intended to aid and abet the gang member in committing the crime.
- Your words and or actions did help or encourage the gang member to commit the crime.
Committing a felony crime yourself, or with a gang member:
The wording of the statute is vague, and the courts have been split in interpreting element three. Some appeal courts have held that you must act with gang members when you commit a crime, while others have held that if you are a gang member or associate, and two of the elements of 186.22(a) have been satisfied, then the assisting felonious conduct element can be satisfied even if you are acting alone when you allegedly commit a felony crime.
This is one important example of why it is crucial to have an experienced and skilled criminal defense attorney who can argue on your behalf, if you are charged with a California Penal Code Section 186.22 offense.
Punishment for Violating Penal Code 186.22(a)
Penal Code 186.22(a) is a wobbler, which means it can be charged as a felony or a misdemeanor.
If you are convicted of misdemeanor violation of PC 186.22(a), you could face up to 364 days in county jail, and the law specifies that you have to serve at least 180 days in jail, if you are convicted, followed by a period of probation.
If you are convicted of a felony violation of PC 186.22(a), you could face 16 months, two, or three years in prison.
Elements of Penal Code 186.22(b)
In order to add the sentence enhancement, you must be convicted of a felony crime, and the prosecution must also prove beyond a reasonable doubt that all of the elements of the sentence enhancement are true:
1. You Committed a Felony Crime
You can receive the 186.22 (b) sentence enhancement for any felony crime you are convicted of, provided the prosecution can prove the other elements of the sentence enhancement. The crime does not have to be one of the crimes listed in California Penal Code Section 186.22(e).
2. The Crime was Gang-related
The crime was committed for the benefit of, at the direction of, or in association with any criminal street gang.
The alleged felony offense you are convicted of must be gang related. Expert witnesses have testified that a particular offense benefitted a gang by enhancing its reputation for viciousness. 4 4 Also, it can be alleged that you committed the felony offense at the direction of a gang, or with gang members.
3. You Had Specific Intent to Promote, Further, or Assist Criminal Gang Conduct
The prosecutor does not have to prove that you were promoting the gang itself, only that you intended to promote criminal conduct by gang members.
Punishment for Violating Penal Code 186.22(b)
If you are convicted of a felony crime, and the Penal Code 186.22 sentence enhancement is applied, you could face two, three, or four years in prison, in addition to the punishment for the crime itself.
Felony Committed Near a School in Session
If you are convicted of a felony crime which was committed within 1,000 yards of a school while it is in session, it could be considered an aggravating circumstance, and you could receive the harshest punishment for the crime you are convicted of.
Serious Felony: If the felony is classified as a serious felony as defined in California Penal Code Section 1192.7(c), you could face five years in prison, in addition to the felony sentence.
Violent Felony: If you are convicted of a violent felony as defined in California Penal Code Section 667.5(c) 5, you could face ten years in prison, in addition to the sentence for the violent felony.
Fifteen Years to Life: If you are convicted of
- Home invasion Robbery — California Penal Code Section 213(A)
- Shooting at an occupied dwelling, or car
- Drive by shooting causing bodily injury or death (California Penal Code Section 12022.55)
You could face a sentence enhancement of fifteen years to life in prison, in addition to the sentence for the felony crime you have been convicted of.
Seven Years to Life: If you are convicted of
- Extortion—California Penal Code Section 519
- Threats to victims or witnesses—California Penal Code Section 136.1
You could face seven years to life in prison in addition to the sentence for the felony crime conviction.
If you are sentenced to life in prison through a California Penal Code Section 186.22(b) sentence enhancement, you will not be eligible for parole until you have served a minimum of fifteen years in state prison.
If you are convicted of a misdemeanor offense, you face up to 364 days in county jail with a minimum sentence of 180 days in jail, even if you get probation.
Defenses to Gang Crime Allegations
1. No Gang Affiliation
One of the elements of a 186.22 charge is gang affiliation. Perhaps you know gang members simply because they live in close proximity to you. If being friendly with gang members is an element in establishing gang affiliation, a skilled attorney can argue that you do not take part in your neighbors’ gang affiliation and do not promote gang activity.
2. No Specific Knowledge of Criminal Activity
In order to convict you of violating Penal Code 186.22(a), the prosecution must prove that you have specific knowledge of gang activity. It is difficult to prove what somebody knows or does not know, and your criminal defense attorney can argue that you did not have any knowledge of gang-related activity.
3. You Did Not Assist or Encourage Felonious Conduct
In order to convict you of violating Penal Code 186.22(a), the prosecutor must prove, beyond a reasonable doubt, that you did something to assist or encourage felonious conduct by a criminal street gang, either by aiding and abetting a gang member who you knew was going to commit a crime, or committing a crime yourself. Your criminal defense attorney can argue that you did not aid the commission of a crime, or if you committed a crime you did not do it in order to assist a street gang, but acted as a free agent.
4. You Did Not Commit a Felony Crime
In order to convict you of a California Penal Code Section 186.22(b) sentence enhancement offense, the prosecutor must first prove all the elements of the felony crime, beyond a reasonable doubt.
5. You Acted As a Free Agent
Your attorney could argue that you did not commit a felony crime at the direction of, for the benefit of, or in association with a criminal street gang. Even if you are a gang member, the prosecution must prove beyond a reasonable doubt that when you committed the crime, you acted for the gang, not as a free agent.
6. Bifurcated Trial
Because a gang affiliation allegation has been proven to be extremely prejudicial to juries, your criminal defense attorney can file a motion for a bifurcated trial. This means that your trial would be conducted in two parts. You would be tried for the alleged felony crime, and if you are convicted you would have a trial to determine whether you committed the felony crime in violation of Penal Code 186.22(b). The jury would not hear about the gang enhancement allegation unless you have been convicted of the felony crime.
7. Prosecutor Improperly Imposed Gang Enhancement
Prosecutors have admitted to adding gang enhancement charges improperly, without enough proof of gang association, in order to intimidate somebody who has been charged with a crime into accepting a plea bargain. 6 It is crucial to talk to an experienced criminal defense attorney before pleading to a crime out of fear of the gang enhancement. An experienced defense attorney can demand to review the evidence against you, and determine if the D.A. is bluffing in order to get you to accept a plea bargain.
8. Change of Venue
Juries who also live in a neighborhood where police harassment is commonplace, and who might normally be sympathetic to defendants, are hostile if the charges are gang related, because they live in fear of gang violence. In other words, a jury can be torn between fear of the police, and fear of criminal street gangs. If a gang affiliation is alleged, the jury might be prejudiced against the defendant. An experienced criminal defense attorney may file a change of venue motion to ensure that the jury is not prejudiced by a California Penal Code Section 186.22 charge of gang affiliation.
Frequently Asked Questions
1. What if I joined a group or club, but I was unaware of any criminal activity going on? Can I be charged with a gang affiliation enhancement?
Yes, you could be. Under PC 286.22 (f), a criminal street gang is define as an ongoing organization of 3 or more persons with a common name or identifying mark or symbol, having as one of its primary activities the commission of certain crimes, whose members individually or collectively engage in criminal activity. Thus, if your club or group fits these elements, you could be charged with a gang affiliation enhancement.
2. What if I was once part of a gang but the gang did not have influence in my crime because I am no longer a member? Could I be convicted of a gang affiliation enhancement?
Yes, however, if you no longer are affiliated with any street gang, a skilled attorney will be able to use this as a strong defense in your case.
3. I am admittedly part of a street gang, but my crime was not gang-related. Can I still be convicted of a gang affiliation enhancement?
First of all, you should never admit that you are member of a criminal street gang, as this is a crime in itself. You could be convicted of a gang enhancement, however, you should hire an experienced attorney to defend you. A skilled criminal defense attorney may be able to prove that your crime was not gang-related in any manner and that you should not be punished with a gang affiliation enhancement.
Call Wallin & Klarich Today
If you have been arrested or charged with a crime and are facing a sentence enhancement due to gang affiliation, you need to hire Wallin & Klarich immediately. The attorneys at
Wallin & Klarich have been successfully defending those facing gang affiliation enhancements for over 40 years.
With offices located in Los Angeles, Sherman Oaks, Torrance, Orange County, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you work or live.
Call us today at (877) 4-NO-JAIL or (877) 466-5425 for a free phone consultation with one of our criminal attorneys. We will get through this together.