OFF THE WIRE
Penal Code 186.22 PC is part of the "California Street Terrorism Enforcement and Prevention Act" – more commonly referred to as the California "STEP Act" . . . or as California's street gang enhancement law.
The California street gang sentencing enhancement law actually has two main parts (only one of which is an actual sentence enhancement). These are:
1. Penal Code 186.22(a) PC, the crime of participation in a gang
This part of the law makes it a crime to participate in a street gang and assist in any felony criminal conduct by the gang's members.
The penalties for participation in a gang, in violation of Penal Code 186.22(a) PC, can include one (1) year in county jail . . . or a California felony sentence of sixteen (16) months, two (2) years or three (3) years in state prison.1
2. Penal Code 186.22(b) PC, the gang sentencing enhancement.
This part of the law provides that anyone who commits a felony for the benefit of a gang will receive a mandatory prison sentence . . . in addition and consecutive to the penalty s/he receives for the underlying felony.2
Depending on the circumstances of the offense, Penal Code 186.22(b) PC could mean an additional two (2) to fifteen (15) years, or even twenty-five (25)-years-to-life, in prison...even if you're not a gang member, and even if you aren't the individual who was most directly responsible for committing the underlying felony!3
So, as you can see, California law, through the STEP Act, punishes gang members...and those who associate with gang members...much more harshly than people who have no gang ties.
Examples
Here are some examples of situations in which the California street gang sentencing enhancement law might apply:
Charles is a member of a street gang that engages in drug trafficking. He is arrested and charged with possession of a controlled substance for sale. And he is also charged with Penal Code 186.22(a) PC -- the California crime of participation in a gang -- which increases his total potential sentence.
Nicole is not a gang member, but her boyfriend Raul is. One day she helps Raul threaten someone who owes money to the gang -- thus committing the California crime of extortion. Because she acted for the benefit of a gang -- even though she is not a gang member -- Nicole may face an additional sentence of up to ten (10) years on top of her sentence for committing extortion.4
Img-gang-tattoo-handcuffs
Legal defenses
But just because the prosecution charges you with a street gang sentencing enhancement doesn't mean it will stick. A good California criminal defense attorney knows this and may be able to help make sure that it doesn't.
Potentially helpful legal defenses against a Penal Code 186.22 PC charge include:
You didn't commit the underlying felony;
You are not an "active participant" in a gang;
You weren't acting for the benefit of a gang;
The prosecutor is seeking to apply the gang sentencing enhancement in an illegal way; and/or
Imposing the gang sentencing enhancement would go against "the interests of justice."
Below, our California criminal defense attorneys5 address the following:
1. The Legal Definition of the Crime of "Participation in a Gang"
(Penal Code 186.22(a) PC)
1.1. Penalties for the crime of "participation in a gang"
2. The California Gang Sentencing Enhancement (Penal Code 186.22(b) PC)
2.1. "Generic" felonies
2.2. "Serious" felonies
2.3. "Violent" felonies
2.4. Specific felonies
2.5. Misdemeanors
2.6. Other sentencing considerations
3. California's Gang Sentencing Enhancement and its Relationship to Other Sentencing Enhancements
3.1. Personal use of a gun
3.2. California's "10-20-life" law
4. Legal Defenses Against Charges Under California's Gang Sentencing
Enhancement Law
5. Comparison with federal gang laws
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
1. The Legal Definition of the Crime of "Participation in a Gang"
(Penal Code 186.22(a) PC)
Penal Code 186.22(a) PC sets out the legal definition of the California crime of "participation in a gang."6
In order to convict you of the offense of "participation in a street gang" under the STEP Act, a California prosecutor must prove the following three facts (otherwise known as "elements of the crime"):
You "actively participated" in a criminal street gang;
You knew that the gang's members engaged in a pattern of criminal gang activity; AND
You willfully assisted, furthered, or promoted felonious (felony) criminal conduct by gang members.7
Img-gang-enforcement-cop-car
In order to help you better understand the legal definition of participation in a gang under Penal Code 186.22(a) PC, we will expand on some of these terms.
"Actively participated"
Under California's gang enhancement law, you are considered to have "actively participated" in gang activities if you participated in those activities in a way that is not merely passive, or in name only. You can be considered to have been an active participant in a gang even if
you didn't devote all or a substantial part of your time to the gang,
you weren't a leader of the gang, and
you weren't even an active member of the gang.8
Example: Juan is arrested for committing an armed California robbery (a California felony).
Police recognize Juan as someone they have frequently seen associating with known members of a local street gang. Juan has also admitted to police that he "kicks back" with the gang sometimes -- even though he is not a member. Also, the robbery Juan committed resembles other robberies members of that gang have committed in the neighborhood.
Because of this, Juan is considered to have actively participated in the gang. He is convicted of Penal Code 186.22(a) PC as well as robbery.9
"Criminal street gang"
A "criminal street gang" is defined as any organization or group of three (3) or more people that
has a common name or identifying sign or symbol,
has, as one of its primary activities, the commission of one of a long list of California criminal offenses, and
whose members have engaged in a "pattern of criminal gang activity"...either alone or together.10
The definition of a "pattern of criminal gang activity" in California's gang sentencing enhancement law is extremely complicated.11 But, put very simply, it means
the commission of two (2) or more crimes from a specific list,
on two (2) or more separate occasions or by two (2) or more people,
within three (3) years of each other, and
with at least one crime committed after September 1988.12
And though it may seem odd, it isn't necessary for the prosecution to prove that these offenses were even gang-related.13
The list of criminal offenses that can establish a "pattern of criminal gang activity" . . . and thus that a group is a "criminal street gang" . . . is quite long. It includes such common offenses as:
Robbery,
Numerous drug offenses, including transportation and sale, possession for sale, and manufacture of drugs,
Drive-by shootings,
Vandalism, but only if it is chargeable as a felony,
Assault with a deadly weapon, and
Murder.14
Example: A group of teenage boys from a neighborhood called Hidden Woods form a group that they call the HW Taggers. They come up with an identifying logo and spray-paint this logo all over nearby neighborhoods -- thus committing the crime of California vandalism -- but don't engage in any other criminal activity.
The damage done by the HW Taggers' graffiti turns out to fairly cheap to repair -- which means that they have only committed misdemeanor vandalism.15 Because only felony vandalism counts to establish a pattern of criminal gang activity, the HW Taggers do not quality as a criminal street gang.
Img-vandalism-graffiti
"Assisted, furthered or promoted" gang criminal activity
In order to prove that you "assisted, furthered or promoted" felony criminal conduct by a gang, the prosecutor must prove that you either
directly and actively committed a felony in California law, or
aided and abetted a felony.16
In addition, in order for you to be convicted of the crime of "participation in a gang" under Penal Code 186.22(a) PC, it must be true that you committed...or aided and abetted...a felony with other gang members. If you commit a felony on your own, you cannot be convicted under this section of California's gang enhancement law.17
(However, even if you acted alone, you may still be subject to the criminal street gang sentencing enhancement under Penal Code 186.22(b) PC...which we discuss further in Section 2 below18.
Example: Joe is a member of a well-known gang. One night he commits an attempted robbery by himself. Members of his gang regularly commit robberies in order to intimidate other members of the community.
Joe may be charged with attempted robbery and may receive a gang sentencing enhancement...but he is NOT guilty of the separate crime of "participation in a gang" for this robbery. This is because he acted alone, rather than together with other gang members.19
1.1. Penalties for the crime of "participation in a gang"
The offense of participation in a gang under Penal Code 186.22(a) PC is a wobbler in California law. This means that the prosecutor may choose to try it as either a misdemeanor or a felony.20
The maximum sentence if you are convicted of Penal Code 186.22(a) PC as a misdemeanor is one (1) year in county jail. You may also receive a fine of up to one thousand dollars ($1,000).21
If you are convicted of participation in a gang as a felony, you may face sixteen (16) months, two (2) years, or three (3) years in the California State Prison.22 You may also receive a fine of up to ten thousand dollars ($10,000).23
2. The California Gang Sentencing Enhancement (Penal Code 186.22(b) PC)
Penal Code 186.22(b) PC sets forth the actual California criminal gang sentencing enhancement.24
The way the street gang sentencing enhancement under the STEP Act works is this: if you are convicted of a California crime, you will receive an enhanced sentence . . . ASSUMING the prosecutor can prove all of the "elements" of the sentencing enhancement.
These elements are:
You committed . . . or attempted . . . the crime for the benefit of, at the direction of, or in association with a criminal street gang; and
When you committed the crime, you intended to assist, further, or promote criminal conduct by members of the gang.25
Of course, you also must be convicted of the underlying crime . . . which means the prosecutor must prove all the elements of that crime as well.26
Importantly, there is no requirement that you be an "active participant" in a gang at the time when you committed the crime.27
Example: Ramon is not a member of the well-known Norteno gang, but several of his friends are. One day, he and his friends throw a bottle at a car that is driven by an off-duty police officer. When the officer attempts to detain them, Ramon and his friends begin beating him...committing the crime of battery on a police officer.
Ramon is convicted and sentenced for that crime . . . and also receives a street gang sentencing enhancement. It doesn't matter that he wasn't a current active member of the Norteno gang, because the prosecutor proves that he committed the crime in order to assist his friends—who are gang members—in their criminal conduct.28
Img-norteno-gang-tattoo
How much will the criminal street gang sentencing enhancement increase your sentence for a particular crime? That depends on what the underlying crime is.
2.1. "Generic" felonies
The general rule is that...if you are convicted of a felony and the STEP Act gang enhancement applies . . . you will receive an additional prison term of two (2), three (3), or four (4) years.29
This term is served in addition and consecutive to the penalty you receive for the underlying felony (as well as any additional charges).30
However, there are numerous exceptions to this general rule.
2.2. "Serious" felonies
If the underlying felony to which the Penal Code 186.22(b) enhancement applies is a so-called "serious" felony, the additional prison term will be five (5) years.31
There are over 42 types of California serious felonies. Examples include (but are not limited to):
Penal Code 246 PC, California's law against shooting at an inhabited dwelling or occupied car,
certain California drug crimes,
assault with a deadly weapon by a prison inmate,
Penal Code 245(a)(1) PC assault with a deadly weapon against a peace officer,
Penal Code 245(a)(2) PC assault with a firearm against a peace officer or firefighter, and
Penal Code 422 PC California's law against making criminal threats.32
2.3. "Violent" felonies
If the underlying felony to which the Penal Code 186.22(b) enhancement applies is a so-called "violent" felony, committed in connection with a street gang . . . then the additional prison term will be ten (10) years.33
The list of crimes that count as "violent" felonies in California is also long—well over 20. Examples include (but are not limited to):
Penal Code 187 PC murder,
any felony in which the defendant inflicts great bodily injury upon a victim,
Penal Code 203 and 205 PC, California's mayhem laws, and
specific California sex crimes.34
2.4. Specific felonies
Finally, Penal Code 186.22(b) PC sets out a few specific felonies that . . . if committed with the intent to assist or promote a gang . . . will lead to an even longer gang sentencing enhancement.
If the underlying felony that you are convicted of is
Penal Code 213 PC home invasion robbery,
Penal Code 215 PC California carjacking,
a felony violation of Penal Code 246 PC, California's law against shooting at an inhabited dwelling or occupied car, or
Penal Code 12022.55 PC – discharging a firearm from a motor vehicle (more commonly referred to as a "drive-by" shooting that causes death or great bodily injury,
then you face an additional fifteen (15) years to life in the California state prison.35
Img-elder-abuse-jail
If you are convicted of either
Penal Code 518 PC extortion committed by force or fear, or
Penal Code 136.1 PC dissuading a witnesss,
then you face seven (7) years to life in the state prison.36
And, finally, if your underlying conviction is for a felony that is punishable by life imprisonment, you will be sentenced to a life term. And in this case, you will not earn credit towards your California parole eligibility until you have served a minimum of fifteen (15) years.37
2.5. Misdemeanors
Penal Code 186.22(d) PC provides one more way that criminal gang involvement can increase your sentence for a particular crime.
This part of California's gang enhancement law allows the prosecution to turn any misdemeanor crime into a felony . . . if the misdemeanor is committed:
for the benefit of, at the direction of, or in association with any criminal street gang, and
with the specific intent to promote, further, or assist in criminal conduct by gang members.38
This means that . . . instead of the normal maximum misdemeanor sentence of one (1) year in county jail . . . you may face one (1), two (2) or three (3) years in state prison.39
Example: Tony waves around a gun in front of a rival gang member and calls out the name of a gang he belongs to as he does so.
He is arrested for violating Penal Code 417 PC, California's "brandishing a weapon" law – ordinarily a misdemeanor. But prosecutors may be able to charge Tony with Penal Code 417 PC as a felony because he committed the offense for the benefit of his gang.
However, if prosecutors elect this option, they are not allowed to then take the "new" felony and add one of the enhancements under Penal Code 186.22(b) PC.40
In other words, the sentence for a felony that has been converted from a misdemeanor cannot also include the normal street gang sentencing enhancement. California courts have recognized that that would be far too harsh a penalty.41
2.6. Other sentencing considerations
Offense took place in a school zone
In addition to the gang sentencing enhancement calculations described above, under the STEP Act, judges will also look at whether the underlying offense took place
in a "school zone" (that is, on the campus of ... or within one thousand (1,000) feet of . . . a public or private school),
during hours when the school was in session or minors were on the grounds.42
If the offense did take place in a school zone, that will be an "aggravating circumstance" that the judge may take into consideration when determining the length of your sentence.43 In other words, that could lead to you receiving a sentence on the higher end of the range.
Img-gang-enhancement-school
Striking the gang enhancement in the interests of justice
Under Penal Code 186.22 PC, California judges may . . . at their discretion . . . strike the gang enhancement altogether . . . IF a skilled California criminal defense lawyer can persuade the judge that it is "in the interests of justice" to do so.44
This is supposed to happen only in unusual cases...but with the help of a good lawyer, you may be able to convince the judge that yours is just such an unusual case.
Multiple gang enhancements
Generally speaking, California law only allows an individual to suffer one sentencing enhancement for a single criminal act...even if that criminal act results in multiple charges.45
However, if a defendant commits several criminal acts that
involve multiple victims, and
are separated by time and distance,
then s/he may face criminal charges for both acts...and the criminal street gang sentencing enhancement may apply to both.46
Example: Arthur is a gang member. One night, he and several other members of his gang rob a man in his apartment. They then drive to another apartment building and rob a second man in his unit. The jury determines that both robberies were committed for the benefit of the gang.
Because the two robberies had different victims . . . and were separated by time and distance . . . Arthur may be convicted of and serve time for both. AND he will receive a separate STEP Act sentencing enhancement for each robbery.47
3. California's Gang Sentencing Enhancement and its Relationship to Other Sentencing Enhancements
There are two other common California sentencing enhancements that may be charged in connection with . . . or instead of . . . the California criminal street gang sentencing enhancement. These are
California's enhancement for personal use of a gun, and
California's "10-20-life" law.
3.1. Personal use of a gun
Penal Code 12022 and 12022.5 PC set forth California's sentencing enhancements for personal use of a gun.
Penal Code 12022 PC adds an additional one (1) year sentence enhancement if any principal is armed with a gun during the commission of a felfelony .48 This means that even if you aren't personally armed...but someone else involved in the felony is...both of you could nevertheless face this enhancement.
Penal Code 12022.5 PC adds a three (3), four (4), or ten (10) year additional and consecutive sentence if you personally use a gun during the commission of a felony.49
In either case, California prosecutors may choose to argue that you should receive this sentence enhancement in place of the STEP Act (criminal gang) sentence enhancement.
3.2. California's "10-20-life" law
The second enhancement that frequently gets charged in connection with California's gang sentencing enhancement is California's "10-20-life 'use a gun and you're done'" law.
California's "10-20-life" law is found in Penal Code 12022.53 PC. Under this sentencing enhancement:
personally using a gun during the commission of certain specific felonies subjects you to a ten (10)-year prison sentence . . . in addition and consecutive to the penalty for the underlying felony;
personally firing a gun subjects you to an additional twenty (20) years; and
personally firing a gun and causing great bodily injury or death to another person (other than an accomplice in the felony) subjects you to an additional twenty-five (25) years to life in prison.50
Img-gang-gavel-gun
The specific felonies that can trigger the "10-20-life" law include things like:
Murder,
Robbery,
Carjacking, and
Kidnapping.51
There are two main ways in which the "10-20-life" law interacts with Penal Code 186.22(b), California's gang sentencing enhancement.
First, if you personally use or discharge a gun during one of the specified felonies...and you commit that felony for the benefit of a gang . . . , you may suffer an enhancement under both Penal Code 186.22(b) and California's "10-20-life" law.52
Second, if you are a principal in one of the specified felonies, committed for the benefit of the gang . . . and another principal (not you personally) uses or discharges a gun during the felony . . . you may receive a sentencing enhancement under California's "10-20-life law" . . . even though that law normally applies only to defendants who personally used a gun.
However, you may not receive both the gun sentence enhancement and the gang sentence enhancement if you did not personally use or discharge a gun.53
Example: Keith and Gary are gang members. They commit an armed robbery together for the benefit of their gang. During the robbery, Keith fires a gun.
Because Keith personally discharged the gun, he may receive both a Penal Code 186.22(b) gang sentencing enhancement and a "10-20-life" firearm enhancement.
Gary didn't personally fire a gun. But he did participate in the robbery for the benefit of the gang, and another principal in the robbery did fire a gun. So Gary may receive a 20-year firearm enhancement (but not a gang enhancement as well).
If this sounds confusing, that's because it is. This is just one reason why it is critical to consult with a criminal defense attorney who has a thorough understanding of both California's firearm laws and California's gang laws.
As Oakland criminal defense attorney Neil Shouse54 explains:
"California gun laws are complex. And California gang sentencing laws are even more so. A lawyer who has mastered these laws immediately recognizes when an overzealous...or, even worse, uneducated . . . prosecutor is attempting to impose an illegal sentencing enhancement. And, just as importantly, we know how to prove our position to the court."
4. Legal Defenses Against Charges Under California's Gang Sentencing Enhancement Law
A California criminal defense lawyer can use a number of common legal defenses to challenge STEP Act charges....either gang participation charges under Penal Code 186.22(a) PC, or the gang sentencing enhancement under Penal Code 186.22(b) PC.
These legal defenses include (but are not limited to):
Fighting the underlying felony charges
If you are not convicted of an underlying felony, you can't receive a criminal street gang sentencing enhancement under Penal Code 186.22(b) PC. In many cases, prosecutors may not have sufficient evidence to prove every element of the felony of which you are accused.
Img-pretrial
Proving that you are not an "active participant" in a gang
If you are charged with "participation in a gang" under Penal Code 186.22(a) PC, you cannot be convicted unless the prosecutor can prove that you are an "active participant" in the gang.55
Particularly if you are not actually a full member of a gang, this can be a difficult allegation to prove. A good criminal defense lawyer can help find the holes in the prosecutor's evidence that you actively participated in a criminal street gang.
You weren't acting "for the benefit of a gang"
Similarly, you can't receive the STEP Act sentencing enhancement under Penal Code 186.22(b) PC if the prosecutor cannot prove that that you acted for the benefit of a gang . . . when you committed this particular felony. This is true even if you are an active member of the gang.56
For example, a gang member might commit a robbery just to try to get money for himself and his family. It may have nothing to do with the gang. But overzealous prosecutors may try to stick him with the gang enhancement just to "dirty him up" at trial . . . and to send him to prison for a longer term.
Even if he is convicted of the robbery, he should be able to beat the gang sentencing enhancement with the help of an experienced California gang crimes defense attorney . . . and his ultimate sentence will likely be much shorter.
The prosecutor is trying to impose the gang sentencing enhancement illegally
It bears repeating that California's gang laws, firearms law, and sentencing laws are very complex. Sometimes even a well-meaning prosecutor may not fully understand the relevant statutes and may file inappropriate or illegal charges against you.
Img-rape-gavel
When prosecutors are charging you with violating California's gang laws, it is critical that your criminal defense lawyer meticulously review each and every aspect of the charge to ensure that you are not being charged illegally or unfairly.
Imposing the gang sentence enhancement would be against the "interests of justice"
Even if a jury decides to impose the criminal street gang sentencing enhancement under Penal Code 186.22(b) PC, remember that the judge has the discretion to strike the sentencing enhancement in special cases . . . if the "interests of justice" demand it.57
Though this happens only in rare cases, an increasing number of legal scholars and observers recognize that California's criminal gang sentencing enhancement laws are unnecessarily harsh...and downright "unjust and ineffective" (as one scholarly article puts it).58
Providing information about your job history, family contributions and obligations, and character might help persuade the judge to exercise that discretion instead of sentencing you under the STEP Act.
5. Comparison with federal gang laws
There are three federal statutes that make it a felony to commit or participate in serious federal... or state... crimes in order to further the interests of a criminal "enterprise" (which can include a gang), or to get into, or further your position in, a gang.
They are:
The Racketeer Influenced and Corrupt Organizations Act ("RICO") 18 USC 1961-68;
The Violent Crimes in Aid of Racketeering Act "(VICAR") 18 USC 1959; and
The Continuing Criminal Enterprise statute 21 USC 848.
Thus, the government often has a choice whether to prosecute gang members under federal or state law.
In general, federal laws are only used to disrupt and destroy large, highly organized gangs that deal drugs or commit crimes of violence over a wide geographic area, or when local law enforcement officials do not have the resources to investigate and prosecute cases in which the federal government has a significant interest.
There is also a penalty enhancement statute -- the Criminal Street Gangs statute 18 USC 521 -- that can in certain circumstances can add up to 10 years to the sentence of gang members convicted of any serious crime in federal court.
Differences between federal and California gang crimes
The definition of a criminal "enterprise" under federal law is slightly different from the definition of a "street gang" under California Penal Code 186.22(b) PC. The underlying crimes that count as predicate acts are slightly different as well.
For practical purposes, however, most organized gangs that deal drugs or commit violent crimes will qualify as enterprises under federal law, if their activities in any way affect interstate or foreign commerce.
And the interstate commerce requirement is easily met -- selling drugs that come from another country or using guns manufactured in another state is usually enough.
But perhaps the biggest difference between being charged in a federal court instead of a California state court is that there is no parole under the federal system.
If you are convicted of a gang-related crime in federal court, you will serve your full sentence.
Thus, the government may use the threat of federal prosecution in order to try to get you to plead guilty to crimes under California law.
Img-gang-bureau-prison
18 USC 1961-68, the Racketeer Influenced and Corrupt Organizations Act ("RICO")
Under RICO, you can be punished if within a 10-year period you commit, or conspire to commit, two or more related crimes ("predicate acts") from a list of 36 specified state and/or federal crimes, in furtherance of the activities of a criminal "enterprise" (which can include a street gang).
Predicate acts under RICO include (but are not limited to):
murder;
kidnapping;
gambling;
arson;
robbery;
bribery;
obstruction of justice;
obstruction of criminal investigations;
extortion; and
drug trafficking.
Penalties for RICO violations can include a prison sentence of up to 20 years or, in some cases, life imprisonment, as well as forfeiture of profits from your illegal activities and a fine of up to $250,000.
18 USC 1959, the Violent Crimes in Aid of Racketeering Act "(VICAR")
VICAR punishes those who commit a violent crime in order to be admitted into, or to bolster their position in, a criminal enterprise.
The predicate crimes under VICAR are:
murder;
kidnapping;
maiming;
assault with a dangerous weapon;
assault resulting in serious bodily injury; and
threatening to commit a crime of violence against any individual in violation of any state or federal law.
Penalties under VICAR can include prison sentences of up to 30 years (or for murder, life imprisonment or the death penalty), and fines of up to $250,000.
The Continuing Criminal Enterprise statute ("CCE" or "Kingpin statute") 21 USC 848
The Continuing Criminal Enterprise statute makes it a crime to be a leader of a drug enterprise or to kill someone while engaging in, or avoiding arrest for, certain drug-related offenses.
Unlike RICO and VICAR, which target a wide range of criminal enterprises, CCE covers only major narcotics organizations.
Penalties under CCE include prison sentences of not less than 20 years (or for murder or ordering a murder, life imprisonment or the death penalty), as well as forfeiture of profits and fines of up to $4,000,000 for individuals and $10,000,000 for organizations.
Img-gavel-evidence
There is no double jeopardy prohibition to punishment for violations of RICO, VICAR and/or CCE and for underlying crimes.
RICO, VICAR and CCE penalties are in addition to each other, as well as in addition to sentences and penalty enhancements for underlying crimes under applicable federal or state law.
Sentencing enhancements under 18 USC 521, the "Criminal Street Gangs" statute
Federal law also provides a penalty enhancement of up to 10 years for crimes committed by gang members who have been convicted within the last five years of a serious state or federal crime.
The definition of a gang is quite limited under 18 USC 521 – the gang must have at least five members and one its primary purposes must be to commit serious drug felonies or crimes of violence under federal law.
The law also requires that a prosecutor prove that you committed the crimes in furtherance of a gang's criminal activities, or to maintain your position within a gang.
Since each of these requirements (other than the fact of a prior conviction) must be charged in the indictment, submitted to a jury, and proven beyond a reasonable doubt, use of the federal penalty enhancement has proved limited.
Legal defenses to federal gang charges
Many of the same legal defenses to charges under California Penal Code 186.22 PC also apply to charges under federal gang laws.
Additional legal defenses may include:
the gang doesn't meet the legal definition of an "enterprise" under RICO/VICAR;
the gang doesn't meet the legal definition of a "continuing criminal enterprise" under CCE;
the gang doesn't meet the legal definition of a "criminal street gang" under the Criminal Street Gangs statute; and
your convictions for the underlying offenses were expunged.
For a more detailed examination of federal gang laws and how they differ from California Penal Code 186.22 PC, visit our page A Comparison of California and Federal Gang Laws.
Call Us for Help...
Img-call-m
If you or loved one is charged with Penal Code 186.22 PC gang enhancement and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
For more information on Nevada's gang crime enhancement law, you may visit our page on Nevada's gang crime enhancement law.
¿Habla español? Visite nuestro sitio Web en español sobre la ley de intensificación de sentencia para las pandillas criminales de California.
Legal References:
1 Penal Code 186.22 PC – Participation in criminal street gang; penalty [California's criminal street gang enhancement law]. ("(a) Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.")
2 See same, California's criminal street gang enhancement law. ("(b)(1) Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: (A) Except as provided in subparagraphs (B) and (C), the person shall be punished by an additional term of two, three, or four years at the court's discretion. (B) If the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years. (C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years. (2) If the underlying felony described in paragraph (1) is committed on the grounds of, or within 1,000 feet of, a public or private elementary, vocational, junior high, or high school, during hours in which the facility is open for classes or school-related programs or when minors are using the facility, that fact shall be a circumstance in aggravation of the crime in imposing a term under paragraph (1). (3) The court shall select the sentence enhancement which, in the court's discretion, best serves the interests of justice and shall state the reasons for its choice on the record at the time of the sentencing in accordance with the provisions of subdivision (d) of Section 1170.1. (4) Any person who is convicted of a felony enumerated in this paragraph committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: (A) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 3046, if the felony is any of the offenses enumerated in subparagraph (B) or (C) of this paragraph. (B) Imprisonment in the state prison for 15 years, if the felony is a home invasion robbery, in violation of subparagraph (A) of paragraph (1) of subdivision (a) of Section 213; carjacking, as defined in Section 215; a felony violation of Section 246; or a violation of Section 12022.55. (C) Imprisonment in the state prison for seven years, if the felony is extortion, as defined in Section 519; or threats to victims and witnesses, as defined in Section 136.1. (5) Except as provided in paragraph (4), any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served.")
3 See same, California's criminal street gang enhancement law.
4 See same, California's criminal street gang enhancement law.
See also Penal Code 667.5(c) PC – Definition of a "violent felony." ("(c) For the purpose of this section, "violent felony" shall mean any of the following: . . . (19) Extortion, as defined in Section 518, which would constitute a felony violation of Section 186.22 of the Penal Code.")
5 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
6 Penal Code 186.22(a) PC – California's criminal street gang enhancement law, endnote 1, above.
7 Judicial Council of California Criminal Jury Instructions ("CALCRIM") 1400 – Active Participation in Criminal Street Gang. ("To prove that the defendant is guilty of this crime, the People must prove that: 1 The defendant actively participated in a criminal street gang; 2 When the defendant participated in the gang, (he/she) knew that members of the gang engage in or have engaged in a pattern of criminal gang activity; AND 3 The defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang either by: a directly and actively committing a felony offense; OR b aiding and abetting a felony offense.")
8 See same. ("Active participation means involvement with a criminal street gang in a way that is more than passive or in name only. [The People do not have to prove that the defendant devoted all or a substantial part of (his/her) time or efforts to the gang, or that (he/she) was an actual member of the gang.]")
9 Based on People v. Castenada, (2000) 23 Cal.4th 743, 752-53. ("Does the evidence show that defendant's involvement with the Goldenwest gang was more than nominal or passive [and so that he had violated Penal Code 186.22(a) PC]? We conclude it does. In the 14 months before the crimes in this case, Santa Ana police officers on seven occasions saw defendant in the company of known Goldenwest gang members, and on four of these gave him written notice that Goldenwest was a criminal street gang under the STEP Act. On those occasions, defendant bragged to the officers that he "kicked back" with the Goldenwest gang, a phrase that gang expert Officer Thomas Serafin explained was gang parlance for being associated with or being a member of the gang. On the date of the crimes here, defendant, armed with a handgun and in the company of two others, pursued victims Venegas and Castillo in the Goldenwest gang's territory, demanded money, forcibly took Venegas's watch, and tried to rip a gold chain off his neck. Gang expert Serafin described the crime as typical of those committed by Goldenwest gang members to put local residents on notice of the gang's control of the neighborhood.")
10 CALCRIM 1400 – Active Participation in Criminal Street Gang. ("[A criminal street gang is any ongoing organization, association, or group of three or more persons, whether formal or informal: 1 That has a common name or common identifying sign or symbol; 2 That has, as one or more of its primary activities, the commission of <insert one or more crimes listed in Pen. Code, § 186.22(e)(1)–(25), (31)–(33)>; AND 3 Whose members, whether acting alone or together, engage in or have engaged in a pattern of criminal gang activity.]")
11 Penal Code 186.22 PC – California's criminal street gang enhancement law. ("(e) As used in this chapter, "pattern of criminal gang activity" means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons: (1) Assault with a deadly weapon or by means of force likely to produce great bodily injury, as defined in Section 245. (2) Robbery, as defined in Chapter 4 (commencing with Section 211) of Title 8 of Part 1. (3) Unlawful homicide or manslaughter, as defined in Chapter 1 (commencing with Section 187) of Title 8 of Part 1. (4) The sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture controlled substances as defined in Sections 11054, 11055, 11056, 11057, and 11058 of the Health and Safety Code. (5) Shooting at an inhabited dwelling or occupied motor vehicle, as defined in Section 246. (6) Discharging or permitting the discharge of a firearm from a motor vehicle, as defined in subdivisions (a) and (b) of Section 26100. (7) Arson, as defined in Chapter 1 (commencing with Section 450) of Title 13. (8) The intimidation of witnesses and victims, as defined in Section 136.1. (9) Grand theft, as defined in subdivision (a) or (c) of Section 487. (10) Grand theft of any firearm, vehicle, trailer, or vessel. (11) Burglary, as defined in Section 459. (12) Rape, as defined in Section 261. (13) Looting, as defined in Section 463. (14) Money laundering, as defined in Section 186.10. (15) Kidnapping, as defined in Section 207. (16) Mayhem, as defined in Section 203. (17) Aggravated mayhem, as defined in Section 205. (18) Torture, as defined in Section 206. (19) Felony extortion, as defined in Sections 518 and 520. (20) Felony vandalism, as defined in paragraph (1) of subdivision (b) of Section 594. (21) Carjacking, as defined in Section 215. (22) The sale, delivery, or transfer of a firearm, as defined in Section 12072. (23) Possession of a pistol, revolver, or other firearm capable of being concealed upon the person in violation of paragraph (1) of subdivision (a) of Section 12101. (24) Threats to commit crimes resulting in death or great bodily injury, as defined in Section 422. (25) Theft and unlawful taking or driving of a vehicle, as defined in Section 10851 of the Vehicle Code. (26) Felony theft of an access card or account information, as defined in Section 484e. (27) Counterfeiting, designing, using, attempting to use an access card, as defined in Section 484f. (28) Felony fraudulent use of an access card or account information, as defined in Section 484g. (29) Unlawful use of personal identifying information to obtain credit, goods, services, or medical information, as defined in Section 530.5. (30) Wrongfully obtaining Department of Motor Vehicles documentation, as defined in Section 529.7. (31) Prohibited possession of a firearm in violation of Section 29800. (32) Carrying a concealed firearm in violation of Section 25400. (33) Carrying a loaded firearm in violation of Section 25850.")
12 CALCRIM 1400 – Active Participation in Criminal Street Gang. ("A pattern of criminal gang activity, as used here, means: 1 [The] (commission of[,]/ [or] attempted commission of[,]/ [or] conspiracy to commit[,]/ [or] solicitation to commit[,]/ [or] conviction of[,]/ [or] (Having/having) a juvenile petition sustained for commission of) <Give 1A if the crime or crimes are in Pen. Code, § 186.22(e)(1)–(25), (31)–(33).> 1A (any combination of two or more of the following crimes/[,][or] two or more occurrences of [one or more of the following crimes]:) <insert one or more crimes listed in Pen. Code, § 186.22(e)(1)–(25), (31)–(33)>; [OR] <Give 1B if one or more of the crimes are in Pen. Code, § 186.22(e)(26)–(30).> 1B [at least one of the following crimes:] <insert one or more crimes from Pen. Code, § 186.22(e)(1)–(25), (31)–(33)>; AND [at least one of the following crimes:] <insert one or more crimes in Pen. Code, § 186.22(e)(26)–(30)>; 2 At least one of those crimes was committed after September 26, 1988; 3 The most recent crime occurred within three years of one of the earlier crimes; AND 4 The crimes were committed on separate occasions or were personally committed by two or more persons.]")
13 People v. Gardeley, (1996) 14 Cal.4th 605, 621. ("Here, the relevant statutory language is clear and unambiguous. Section 186.22, subdivision (e) [California's street gang enhancement law] defines "pattern of criminal gang activity" as "the commission, attempted commission, or solicitation of two or more" enumerated offenses occurring within a specified time period, and "committed on separate occasions, or by two or more persons." Nothing in this statutory language suggests an intent by the Legislature to require the "two or more" predicate offenses to have been committed "for the benefit of, at the direction of, or in association with" the gang, as defendants contend.")
14 Penal Code 186.22 PC – California's criminal street gang enhancement law, endnote 11, above.
15 Penal Code 594 PC – Vandalism; penalty [only felony vandalism counts for purpose of street gang sentencing enhancement law]. (a) Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism: (1) Defaces with graffiti or other inscribed material. (2) Damages. (3) Destroys. Whenever a person violates this subdivision with respect to real property, vehicles, signs, fixtures, furnishings, or property belonging to any public entity, as defined by Section 811.2 of the Government Code, or the federal government, it shall be a permissive inference that the person neither owned the property nor had the permission of the owner to deface, damage, or destroy the property. (b)(1) If the amount of defacement, damage, or destruction is four hundred dollars ($400) or more, vandalism is punishable by imprisonment pursuant to subdivision (h) of Section 1170 or in a county jail not exceeding one year, or by a fine of not more than ten thousand dollars ($10,000), or if the amount of defacement, damage, or destruction is ten thousand dollars ($10,000) or more, by a fine of not more than fifty thousand dollars ($50,000), or by both that fine and imprisonment. (2)(A) If the amount of defacement, damage, or destruction is less than four hundred dollars ($400), vandalism is punishable by imprisonment in a county jail not exceeding one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment. (B) If the amount of defacement, damage, or destruction is less than four hundred dollars ($400), and the defendant has been previously convicted of vandalism or affixing graffiti or other inscribed material under Section 594, 594.3, 594.4, 640.5, 640.6, or 640.7, vandalism is punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than five thousand dollars ($5,000), or by both that fine and imprisonment.")
16 CALCRIM 1400 – Active Participation in Criminal Street Gang, endnote 7, above.
17 People v. Rodriguez, (2012) 55 Cal.4th 1125, 1153. ("Although the People might prefer a different statute, section 186.22(a) reflects the Legislature's carefully structured endeavor to punish active participants for commission of criminal acts done collectively with gang members. Defendant here acted alone in committing the attempted robbery. Thus, he did not also violate section 186.22(a).")
18 See same, at 1152. ("A lone gang member who commits a felony will not go unpunished; he or she will be convicted of the underlying felony. Further, such a gang member would not be protected from having that felony enhanced by section 186.22(b)(1), . . . .")
19 Based on the facts of the same.
20 Penal Code 186.22(a) PC – California's criminal street gang enhancement law, endnote 1, above.
21 See same.
See also Penal Code 672 PC – Offenses for which no fine prescribed. ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors [including misdemeanor violations of Penal Code 186.22(a) PC] or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.")
22 Penal Code 186.22(a) PC – California's criminal street gang enhancement law, endnote 1, above.
23 Penal Code 672 PC – Offenses for which no fine prescribed [including participation in a street gang], endnote 21, above.
24 Penal Code 186.22(b) PC – California's criminal street gang enhancement law, endnote 2, above.
25 CALCRIM 1401 – Felony or Misdemeanor Committed for Benefit of Criminal Street Gang [gang sentencing enhancement]. ("To prove this allegation, the People must prove that: 1 The defendant (committed/ [or] attempted to commit) the crime (for the benefit of[,]/ at the direction of[,]/ [or] in association with) a criminal street gang; AND 2 The defendant intended to assist, further, or promote criminal conduct by gang members.")
26 See same. ("If you find the defendant guilty of the crime[s] charged in Count[s] [,] [or of attempting to commit (that/those crime[s])][,][or the lesser offense[s] of <insert lesser offense[s]>], you must then decide whether[, for each crime,] the People have proved the additional allegation that the defendant committed that crime (for the benefit of[,]/ at the direction of[,]/ [or] in association with) a criminal street gang. [You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime.]")
27 In re Ramon T., (1997) 57 Cal.App.4th 201, 206. ("Appellant is correct that the prosecution was required to prove that the Nortenos were a criminal street gang and that the crimes were committed for the benefit of, at the direction of or in association with the Nortenos. However, he is wrong in asserting that the prosecution was required to prove that he was a "current, active" member of that gang. Appellant's claim that he must be proven to be an "active" member of the Nortenos is based on People v. Green (1991) 227 Cal.App.3d 692, 700, 278 Cal.Rptr. 140 ( Green ). However, Green considered what was required to constitute a violation of section 186.22, subdivision (a)-a substantive offense which specifically requires "active" participation in a gang. No such requirement is found in section 186.22, subdivision (b) [California's street gang enhancement law], which is an enhancement.")
28 Loosely based on the facts of the same.
29 Penal Code 186.22(b) PC – California's criminal street gang enhancement law. ("(b)(1) Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: (A) Except as provided in subparagraphs (B) and (C), the person shall be punished by an additional term of two, three, or four years at the court's discretion.")
30 See same.
31 See same. ("(B) If the felony [to which the criminal street gang sentencing enhancement applies] is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years.")
32 Penal Code 1192.7(c) PC – California serious felonies. ("c) As used in this section, "serious felony" [including for purposes of criminal street gang sentence enhancement] means any of the following: (1) Murder or voluntary manslaughter; (2) mayhem; (3) rape; (4) sodomy by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person; (5) oral copulation by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person; (6) lewd or lascivious act on a child under 14 years of age; (7) any felony punishable by death or imprisonment in the state prison for life; (8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm; (9) attempted murder; (10) assault with intent to commit rape or robbery; (11) assault with a deadly weapon or instrument on a peace officer; (12) assault by a life prisoner on a noninmate; (13) assault with a deadly weapon by an inmate; (14) arson; (15) exploding a destructive device or any explosive with intent to injure; (16) exploding a destructive device or any explosive causing bodily injury, great bodily injury, or mayhem; (17) exploding a destructive device or any explosive with intent to murder; (18) any burglary of the first degree; (19) robbery or bank robbery; (20) kidnapping; (21) holding of a hostage by a person confined in a state prison; (22) attempt to commit a felony punishable by death or imprisonment in the state prison for life; (23) any felony in which the defendant personally used a dangerous or deadly weapon; (24) selling, furnishing, administering, giving, or offering to sell, furnish, administer, or give to a minor any heroin, cocaine, phencyclidine (PCP), or any methamphetamine-related drug, as described in paragraph (2) of subdivision (d) of Section 11055 of the Health and Safety Code, or any of the precursors of methamphetamines, as described in subparagraph (A) of paragraph (1) of subdivision (f) of Section 11055 or subdivision (a) of Section 11100 of the Health and Safety Code; (25) any violation of subdivision (a) of Section 289 where the act is accomplished against the victim's will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person; (26) grand theft involving a firearm; (27) carjacking; (28) any felony offense, which would also constitute a felony violation of Section 186.22; (29) assault with the intent to commit mayhem, rape, sodomy, or oral copulation, in violation of Section 220; (30) throwing acid or flammable substances, in violation of Section 244; (31) assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245; (32) assault with a deadly weapon against a public transit employee, custodial officer, or school employee, in violation of Section 245.2, 245.3, or 245.5; (33) discharge of a firearm at an inhabited dwelling, vehicle, or aircraft, in violation of Section 246; (34) commission of rape or sexual penetration in concert with another person, in violation of Section 264.1; (35) continuous sexual abuse of a child, in violation of Section 288.5; (36) shooting from a vehicle, in violation of subdivision (c) or (d) of Section 26100; (37) intimidation of victims or witnesses, in violation of Section 136.1; (38) criminal threats, in violation of Section 422; (39) any attempt to commit a crime listed in this subdivision other than an assault; (40) any violation of Section 12022.53; (41) a violation of subdivision (b) or (c) of Section 11418; and (42) any conspiracy to commit an offense described in this subdivision.")
33 Penal Code 186.22(b) PC – California's criminal street gang enhancement law.. ("(C) If the felony [to which the California gang enhancement applies] is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years.")
34 Penal Code 667.5(c) PC -- California violent felonies. ("(c) For the purpose of this section, "violent felony" [including for purposes of criminal street gang sentence enhancement] shall mean any of the following: (1) [Penal Code 187] Murder or voluntary manslaughter. (2) [Penal Code 203 or 205 PC] Mayhem. (3) [Certain California sex crimes including] Rape as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262. (4) Sodomy as defined in subdivision (c) or (d) of Section 286. (5) Oral copulation as defined in subdivision (c) or (d) of Section 288a. (6) Lewd or lascivious act as defined in subdivision (a) or (b) of Section 288. (7) Any felony punishable by death or imprisonment in the state prison for life. (8) Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or after July 1, 1977, or as specified prior to July 1, 1977, in Sections 213, 264, and 461, or any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55. (9) Any robbery. (10) Arson, in violation of subdivision (a) or (b) of Section 451. (11) Sexual penetration as defined in subdivision (a) or (j) of Section 289. (12) Attempted murder. (13) A violation of Section 12308, 12309, or 12310. (14) Kidnapping. (15) Assault with the intent to commit a specified felony, in violation of Section 220. (16) Continuous sexual abuse of a child, in violation of Section 288.5. (17) Carjacking, as defined in subdivision (a) of Section 215. (18) Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1. (19) Extortion, as defined in Section 518, which would constitute a felony violation of Section 186.22 of the Penal Code [California's street gang enhancement law]. (20) Threats to victims or witnesses, as defined in Section 136.1, which would constitute a felony violation of Section 186.22 of the Penal Code. (21) Any burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary. (22) Any violation of Section 12022.53. (23) A violation of subdivision (b) or (c) of Section 11418. The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence to display society's condemnation for these extraordinary crimes of violence against the person.")
35 Penal Code 186.22(b) PC – California's criminal street gang enhancement law. ("(4) Any person who is convicted of a felony enumerated in this paragraph committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: (A) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 3046, if the felony is any of the offenses enumerated in subparagraph (B) or (C) of this paragraph. (B) Imprisonment in the state prison for 15 years, if the felony is a home invasion robbery, in violation of subparagraph (A) of paragraph (1) of subdivision (a) of Section 213; carjacking, as defined in Section 215; a felony violation of Section 246; or a violation of Section 12022.55.")
36 See same. ("(C) Imprisonment in the state prison for seven years, if the felony is extortion, as defined in Section 519; or threats to victims and witnesses, as defined in Section 136.1.")
37 See same. ("(5) Except as provided in paragraph (4), any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served.") [This means that a defendant sentenced to life in prison with the California gang sentencing enhancement will not be parole eligible until he has actually served at least 15 years.]
38 Penal Code 186.22(d) PC – California's criminal street gang enhancement law. ("(d) Any person who is convicted of a public offense punishable as a felony or a misdemeanor, which is committed for the benefit of, at the direction of or in association with, any criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison for one, two, or three years, provided that any person sentenced to imprisonment in the county jail shall be imprisoned for a period not to exceed one year, but not less than 180 days, and shall not be eligible for release upon completion of sentence, parole, or any other basis, until he or she has served 180 days. If the court grants probation or suspends the execution of sentence imposed upon the defendant, it shall require as a condition thereof that the defendant serve 180 days in a county jail.")
39 See same.
40 People v. Arroyas, (2002) 96 Cal.App.4th 1439, 1445. ("While any felony may be punished under subdivision (b)(1) [of the criminal street gang enhancement law], subdivision (d) presents an option to punish a felony differently than provided by subdivision (b)(1), and also provides an option to punish gang-related misdemeanors more severely. Although subdivision (d) allows the court to impose felony punishment for a misdemeanor committed with a gang-related purpose, nothing in the statute or in its stated purposes suggests an intention of the people of this state to bootstrap subdivision (d) misdemeanors into subdivision (b)(1) felonies as a means of applying a double dose of harsher punishment.")
41 See same.
42 Penal Code 186.22(b) PC – California's criminal street gang enhancement law. ("(2) If the underlying felony described in paragraph (1) is committed on the grounds of, or within 1,000 feet of, a public or private elementary, vocational, junior high, or high school, during hours in which the facility is open for classes or school-related programs or when minors are using the facility, that fact shall be a circumstance in aggravation of the crime in imposing a term under paragraph (1).")
43 See same.
44 Penal Code 186.22(g) PC – California's criminal street gang enhancement law. ("(g) Notwithstanding any other law, the court may strike the additional punishment for the enhancements provided in this section or refuse to impose the minimum jail sentence for misdemeanors in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition.")
45 Penal Code 654 PC – Offenses punishable in different ways by different provisions; double jeopardy; denial of probation [prevents the gang enhancement from being applied twice for the same act]. ("(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.")
46 People v. Akins, (2007) 56 Cal.App.4th 331, 338-39. ("Section 654 provides that even though an act violates more than one statute and thus constitutes more than one crime, a defendant may not be punished multiple times for that single act. The "act" which invokes section 654 may be a continuous " 'course of conduct' ... comprising an indivisible transaction ...." "The divisibility of a course of conduct depends upon the intent and objective of the defendant.... [I]f the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment [including the street gang sentencing enhancement] for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.") (citations omitted)
47 Based on the facts of the same.
48 Penal Code 12022 PC -- Being armed with a firearm or personally using a dangerous or deadly weapon during the commission of a felony [may be charged along in lieu of the street gang sentencing enhancement]. ("(a)(1) Except as provided in subdivisions (c) and (d), any person who is armed with a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment pursuant to subdivision (h) of Section 1170 for one year, unless the arming is an element of that offense. This additional term shall apply to any person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm.")
49 Penal Code 12022.5 PC -- Personal use of firearms, assault weapons, or machine guns during the commission of a felony [may be charged along in lieu of the street gang sentencing enhancement]. ("(a) Except as provided in subdivision (b), any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense.")
50 Penal Code 12022.53 PC – California's 10-20-life law [may be applied along with California's street gang sentencing enhancement]. ("(a) This section applies to the following felonies: (1) Section 187 (murder). (2) Section 203 or 205 (mayhem). (3) Section 207, 209, or 209.5 (kidnapping). (4) Section 211 (robbery). (5) Section 215 (carjacking). (6) Section 220 (assault with intent to commit a specified felony). (7) Subdivision (d) of Section 245 (assault with a firearm on a peace officer or firefighter). (8) Section 261 or 262 (rape). (9) Section 264.1 (rape or sexual penetration in concert). (10) Section 286 (sodomy). (11) Section 288 or 288.5 (lewd act on a child). (12) Section 288a (oral copulation). (13) Section 289 (sexual penetration). (14) Section 4500 (assault by a life prisoner). (15) Section 4501 (assault by a prisoner). (16) Section 4503 (holding a hostage by a prisoner). (17) Any felony punishable by death or imprisonment in the state prison for life. (18) Any attempt to commit a crime listed in this subdivision other than an assault. (b) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply. (c) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years. (d) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 26100, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.")
51 See same.
52 See same. ("(e)(1) The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: (A) The person violated subdivision (b) of Section 186.22. (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d). (2) An enhancement for participation in a criminal street gang pursuant to Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1 shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense.")
53 See same.
54 Oakland criminal defense attorney Neil Shouse is the Managing Attorney of Shouse Law Group. He is a former Los Angeles County Deputy District Attorney, where he worked on complex, high profile gang, murder, and firearms cases. Now, Shouse has turned the inside knowledge he gained as a prosecutor into extraordinary expertise in criminal defense law . . . thanks to which he frequently appears as a guest legal commentator on national television. He appears in criminal court defending clients throughout the Bay Area and the rest of California.
55 CALCRIM 1400 – Active Participation in Criminal Street Gang, endnote 7, above.
56 CALCRIM 1401 – Felony or Misdemeanor Committed for Benefit of Criminal Street Gang [gang sentencing enhancement], endnote 25, above.
57 Penal Code 186.22(g) PC – California's criminal street gang enhancement law, endnote 44, above.
58 Sara Lynn Van Hofwegen, "Unjust and Ineffective: A Critical Look at California's STEP Act," 18 Southern California Interdisciplinary Law Journal 679 (2009).
59 United States v. Matthews, 312 F.3d 652 (5th Cir. 2002), cert. denied, 538 U.S. 938
(2003) (upholding a penalty enhancement based on convictions for his sentences for convictions of carjacking and conspiracy to commit carjacking, where the facts serving as the basis of the Criminal Street Gangs statute were charged in the indictment, submitted to a jury, and proven beyond a reasonable doubt). The Matthews court was applying Apprendi v. New Jersey 530 U.S. 466 (2000), in which the Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.
See also, Jennifer E. Fleming, Your Honor, I Seen Him with That Gang: The Constitutionality of the Federal Criminal Street Gang Statute in the Wake of Apprendi v. New Jersey, 18 Wm. & Mary Bill Rts. J. 249 (2009).
