California has many criminal gangs, so legislators enacted the Street Terrorism and Prevention Act (STEP) in 1988. Per the Act, gang acquaintances or members convicted of felonies will receive punishment for the felony and additional penalties for committing a felony to benefit or in association with a criminal gang. The supplementary penalty compounding over the sentence imposed for the initial crime is gang enhancement. If you face violent crime charges involving a criminal organization's affiliation in Anaheim, the California Criminal Lawyer Group can help. Our criminal lawyers will tirelessly prevent the enhancement of the penalty when found guilty.

Legal Definition of Participating in a Street or Criminal Gang

PEN 186.22 outlines two categories of criminal gang actions and the punishment for the offense. PEN 186.22(a) makes it a crime to actively engage in a criminal gang when you know the organization's members participate in an array of illegal activities and you willfully promote, aid, or further these activities.

You will be deemed to have acted in violation of PC 186.22A in the following cases:

  • You, with the help of one or more gang affiliates, assault another person with an acidic chemical.
  • You, a non-criminal gang member, participate in carjacking to help a gang.
  • You, a criminal gang member, commit the offense of drug trafficking after taking orders from another member.

Meaning of Active Engagement or Participation

A conviction for this crime only happens when you actively engage in criminal gang activity, whether firsthand or not. For instance, when you transport guns that a gang member uses to kill someone, the court will find you guilty because you actively engaged in the murder, even if you are not a gang member. Nevertheless, the court will not issue a guilty verdict if you are only a passive member of a criminal gang or just a member by name. Active engagement in illegal activity must be evident to be convicted.

Criminal Street Gang Meaning

A criminal street gang refers to:

  • At least three individuals come together to form an association or organization.
  • With a collective identifying mark, symbol, or name.
  • The main activity of the organization is participating in a pattern of crimes listed under the gang enhancement statute, and
  • The members of the association participate in the commission of or have committed crimes in the past.

Meaning of Pattern of Crime

Illegal activities’ pattern means the gang commits over two offenses listed in gang enhancement statutes in at least two separate incidents and by at least two members within thirty-six months, and one of the offenses was perpetrated after the enactment of STEP in 1988. The prosecutor does not have to demonstrate that these activities were street gang-related. Crimes that constitute a pattern of criminal street gang activity are:

  • Arson.
  • Firearm possession.
  • Rape.
  • Burglary.
  • Grand theft.
  • Grand theft auto and firearm.
  • Kidnapping.
  • Mayhem.
  • Murder or illegal homicide.
  • Carjacking.
  • Victim intimidation.
  • Assault with a gun.
  • Assault with a lethal weapon.
  • Drug offenses like trafficking, sale, or distribution.
  • Unlawful driving or theft of an automobile.
  • Particular sex offenses.
  • Felony extortion.
  • Money laundering.

Meaning of Aided, Furthered, or Promoted a Gang

The last but not least minor aspect of the PEN 186.22(a) violation the prosecutor should demonstrate is that you planned on promoting or aiding gang activities. To do this, you must have openly or actively engaged in a felony or engaged in the offense individually but with assistance from at least two gang members. If you perpetuate the crime without help, you will not be guilty of criminal gang participation but will attract penalty enhancement under the STEP Act.

When the prosecutor demonstrates all the above aspects of the case, and the court finds you guilty, you risk misdemeanor or felony penalties based on the case’s circumstances, as the crime is a wobbler. A misdemeanor conviction will attract at most twelve months of jail incarceration and a court-imposed monetary fine of no more than $1,000. For a felony conviction, you will face at most 36 months of prison incarceration and a court-imposed fine of $10,000.

The STEP Law or Gang Enhancement

California PEN 186.22(b) defines gang enhancement, also called the STEP statute. This subsection subjects you to penalty enhancement when you are found guilty of criminal gang participation. It means that the statute imposes additional penalties over those provided by the law for PC 186.22(a) violations. The penalty enhancement provided by the STEP Act is aimed at curbing street gang activity in the state.

PEN 186.22(b) outlines the penalty enhancements for participation in criminal gang activities. Therefore, if the magistrate finds you guilty of a crime committed to promote or further gang activity, gang enhancement, or PEN 186.22(b), comes in to add on to your prison incarceration or court fine for the baseline crime. The STEP statute enables the judge to impose an additional sentence for a crime committed by a criminal gang.

Per PEN 186.22(b), any individual who engages in an activity related to a criminal gang or accompanies gang members in committing a crime will face prosecution under STEP laws. The enhancement increases the penalties for crimes committed to benefit a street gang. However, the penalty increment is only possible if the District Attorney (DA) can show the illegal activity you were convicted of was done for the benefit of or to further gang activity. To be specific, the prosecutor must demonstrate that:

  • Your crime was a pattern of criminal gang activity.
  • And that the offense benefited a criminal organization and was more than reputational.

The penalty enhancement only occurs if you are convicted of the underlying crime. In short, the prosecutor must prove all the elements of the baseline offense, plus the gang enhancement elements, to secure penalty enhancement.

Unlike under PEN 186.22(a), where the prosecutor should demonstrate active engagement in criminal gang activity, the prosecutor must not prove this element under subsection 186.22(b).

A conviction for both participation in a criminal organization and gang enhancement will result in severe consequences if the crime is gang-related, whether you deem yourself a member of the criminal organization or not.

You should also note that the STEP, or gang enhancement law, will only affect your charges if you are convicted for the baseline violation. If you have been charged with drug trafficking or sale and the court finds you innocent, you will not face a penalty enhancement. The penalty enhancement will be as follows:

  • Generic Felonies

The STEP Act’s rule of thumb is that the court will sentence you to an additional 24, 36, or 48 months of prison or jail incarceration if the gang enhancement statutes apply in your case. The extra imprisonment is served alongside and consecutive to the baseline felony penalties. You should understand that even if there are definite penalties for generic felonies, exceptions exist.

  • Violent Felonies

When the court finds you guilty of a violent felony performed for the good of or to further a criminal organization, gang enhancement statutes will apply, and you risk additional and consecutive 120 months of prison incarceration. California classifies twenty crimes as violent felonies, including but not limited to murder, particular sex offenses, felonies causing significant bodily harm, and mayhem.

  • Serious Felonies

When you commit a serious felony where gang enhancement or the STEP Act applies, you attract a penalty enhancement of 60 months in prison. California has 42 crimes that the court deems serious. These include, but are not limited to:

  1. Specific drug offenses.
  2. Criminal threats.
  3. Assault of a peace officer with a gun or deadly weapon.
  4. Assault with a deadly weapon.
  5. Shooting at an inhabited dwelling or occupied vehicle.

You attract a penalty enhancement when any of these crimes are committed while participating in criminal association activities.

  • California Misdemeanors

California PC 186.22(d) allows the prosecutor to turn a misdemeanor into a felony when the misdemeanor is committed further, in association with, or under the direction of a criminal organization to promote the gang's interests.

Instead of the typical misdemeanor penalties like county jail incarceration, a conviction for a misdemeanor where PEN 186.22(b) applies will be sentenced as a felony, resulting in 12, 24, or 36 months in prison. Nevertheless, the new felony will not be subject to gang enhancement.

  • Specific Felonies

PEN 186.22(b) lists specific crimes that, when perpetrated to encourage or further the activities of a criminal organization, will result in an enhancement in prison incarceration. These specific felonies are:

  1. Robbery.
  2. Shooting in an occupied dwelling or car.
  3. Carjacking.
  4. Drive-by-shooting.

A conviction for any of these offenses will result in an additional 15 years of prison incarceration on top of the penalties for the baseline crime if the STEP Act is applicable.

A conviction for extortion through fear or victim dissuasion to promote gang activity will result in an additional 84 months in prison, with the option of being extended to life incarceration.

Lastly, when the baseline felony is punishable by life incarceration, the judge will impose a life sentence, and the defendant will only be eligible for parole after serving 15 or more years.

Other Factors that Influence Sentencing Under the Gang Enhancement Statute

Apart from the penalty enhancements under PEN 186.22(b), several other elements affect your penalization. These are:

Committing a Felony in School Zones

Engaging in a crime in a school zone like a campus or within a thousand feet of a private or public learning institution where school activities happen is aggravating, and the court can rely on it to enhance your sentence. In these circumstances, the court will increase your sentence.

Striking Off for Justice’s Sake

PEN 186.22 gives the presiding judge discretion to remove gang enhancement if your defense lawyer convinces them that doing so will be for justice’s sake. Nevertheless, these instances are rare and only occur in unique circumstances. Only an experienced defense lawyer can convince the judge to strike off the penalty enhancement for justice’s sake, so you should be careful when hiring and ensure you pick the best criminal lawyer.

Several Gang Enhancements

Even if your baseline crime attracts several criminal charges, you will only face one gang enhancement. Nevertheless, you risk multiple gang enhancements when you commit an offense involving numerous victims that can only be differentiated by space and time.

Legal Defenses Against Gang Enhancement

The penalty enhancements for participation in criminal organization activities are severe. You will need a skilled and experienced defense lawyer for a fair or reasonable ruling. At the California Criminal Lawyer Group in Anaheim, we understand several defense strategies applicable to your case to prevent a conviction or sentence enhancement where a guilty verdict is inevitable. The viable legal defenses to gang enhancement are:

  • You did Not Engage or Commit the Alleged Baseline Crime

If you did not commit the baseline gang-related felony, you cannot face gang enhancement. You only attract PEN 186.22(b) if the prosecutor proves beyond a reasonable certainty that you committed an underlying felony to promote or benefit a criminal gang. Therefore, your lawyer can prevent the penalty enhancement by presenting evidence to contest the prosecutor’s assertion that you committed the baseline offense. If you stop a conviction for the crime associating you with a criminal association, you cannot face penalty enhancement under the STEP Act.

  • You are not an Active Member of a Criminal Organization

When the prosecutor bases their charges on a PEN 186.22(a) violation, they must demonstrate that you, the defendant, are affiliated with or an active street gang member. It is always difficult for the prosecutor to prove full participation in gang activity, allowing your competent lawyer to disapprove of your active engagement in a criminal organization. Nevertheless, you can only apply this defense if you are not a complete gang member. If your affiliation with the gang is only by name or symbol, you are a passive member or not a member, and the judge drops the criminal gang participation charges.

  • Your Conduct was not Aimed at Benefiting a Criminal Organization

Under gang enhancement statutes, proving you are an active gang member alone is insufficient for the prosecutor to secure a penalty enhancement. They should show that your felony was committed to benefit the criminal organization, whether you are a member or not. Even if you are affiliated with a criminal group, you will not face penalty enhancement after conviction if you act for your own individual interests.

For example, you rob someone returning home from work and use the stolen money to feed your family. In these circumstances, you acted independently and not to benefit the gang, which means you will not face penalty enhancement. The enhancement only happens when your crime is gang-related or performed to promote or assist a street gang. Nevertheless, an ardent prosecutor will still push for gang enhancement so you can spend more time in prison. An experienced defense lawyer will contest the enhancement even if the court finds you guilty of robbery, reducing your incarceration.

  • The Gang Enhancement by the Prosecutor was Improper or Illegal

Sentencing and gang statutes are complex. A prosecutor can impose improper charges when they misunderstand a law, even when they mean well. Others charge defendants under the STEP Act when there is insufficient proof to demonstrate gang association to compel them to assent to a plea bargain. You must consult with your criminal lawyer before approving a deal out of fear of gang enhancement.

Your defense lawyer will meticulously evaluate all elements of the charges to confirm that the DA is not bluffing and that you are not unfairly charged. If, after the review, the lawyer discovers the gang enhancement by the DA is improper, they will compel the court to strike it off.

  • The Gang Enhancement is Against Justice’s Interest

Judges have the discretion to impose gang enhancement if it is for the sake of justice. Although these instances are rare, they still happen. Nevertheless, your criminal lawyer can convince the judge that the penalty enhancement is punitive and ineffective. Therefore, it should be struck off, as it is not in the interest of or for the sake of justice. The lawyer will cite your character, family duties, and employment history to convince the court not to impose the enhancement.

  • False Allegations

Police or other defendants can easily accuse you of participating in criminal organization activities when you have no interactions with or minimal connection with the group. Your lawyer will disapprove of the accusations by showing that you were in a different location when the alleged felony happened. They will present phone records, video surveillance footage, and credit card details to prove you could not have committed the crime.

  • The Police Engaged in Misconduct

You can argue that the police violated the Fourth Amendment by conducting an illegal arrest or search. If this is your case, your defense lawyer can assert that the evidence against you was obtained unlawfully and file a motion to suppress. The evidence obtained illegally will be withdrawn from the case if the court grants the Pitchess motion to suppress evidence. That way, the prosecutor will be left with a weak lawsuit that will compel them to offer a plea deal, reduce the charges, or drop the case.

  • You were Coerced or Acted Under Duress

You face PEN 186.22 violation charges when participating in a criminal organization or committing a crime to benefit a criminal gang. Therefore, there is a possibility the street gang members coerced you into engaging in a felony to benefit their organization. Your criminal lawyer can argue that the street gang members threatened you, and you had no other option but to engage in illegal activity for their benefit.

Also, you can claim that you acted out of duress, meaning you engaged in a felony because you reasonably believed you were in immediate danger. Under these circumstances, the law excuses you from criminal culpability.

Sentence Enhancements Related to Gang Enhancement

Several laws are associated with criminal gang enhancement. These are:

Personal Use of a Firearm Sentencing Enhancement

California PEN 12022 and PC 12022.5 outline personal gun use penalty enhancements. According to PEN 12022, you risk a penalty enhancement of twelve months in prison if you possess a weapon when committing a felony. You risk the enhancement even if you are not the person armed with the gun. If your principal is armed, you will attract the penalty enhancement.

Additionally, PEN 12022.5 imposes additional and consecutive 36, 48, or 120 months of prison incarceration if you are convicted of committing a felony using a firearm.

In these circumstances, the prosecutor will compel the court to impose a penalty enhancement on or in place of the gang enhancement. It is usually the case if you use a firearm to commit a felony for the benefit of a street gang.

Ten-Twenty-Life Law

The 10-20-life statute is commonly charged with gang enhancement. The enhancement is outlined under PEN 12022.53. Per the statute:

  1. You risk additional and consecutive 120 months of prison incarceration when you individually utilize a firearm to accomplish a particular felony.
  2. The court will impose additional prison incarceration of twenty years if you personally shoot a gun while engaging in a felony.
  3. If the victim of your crime sustains great bodily injury (GBI) or death because you used your firearm in the commission of a felony, you risk an additional prison sentence of 25 years, which the court can extend to life incarceration.

Felony offenses that can prompt the above sentencing enhancements include murder, robbery, carjacking, and kidnapping.

The sentencing enhancement under this statute interacts with the gang enhancement in that if you fire a gun or utilize one to engage in a crime for the benefit of a criminal organization, you attract both enhancements under PEN 12022.53 and PEN 186.22(b) if the court finds you guilty.

Similarly, when you are a principal in the commission of a particular felony in association with or furtherance of gang activity, you risk a penalty enhancement under the 10-20-life statute and the STEP Act, even when you are not the party that discharged or fired the gun.

Find a Reputable Anaheim Criminal Defense Lawyer Near Me

You will easily face gang enhancement sentencing when you commit a crime in association with a criminal organization. The penalty enhancement will double or triple your sentence, so you should speak to a qualified criminal lawyer when charged with a criminal gang-related offense. A lawyer with sentencing enhancement knowledge will analyze your case and develop the proper defenses to prevent a conviction or lessen your punishment. At the California Criminal Lawyer Group in Anaheim, we have the skills and resources to tailor effective defenses based on your case’s circumstances. Call us today at 714-766-0965 for a no-obligation consultation.