CALIFORNIA PENAL CODE 186.22 – GANG ENHANCEMENT
Under California Penal Code 186.22, any person who willfully participates in gang activities, or joins other members, while carrying out a crime could be found in violation of gang enhancement laws. This law is a sentencing enhancement, meaning it adds additional time to a prison sentence for all crimes which were committed along with gang activity.
California Penal Code 182.22 states a criminal street gang is any ongoing organization of 3 or more people that have a common name or identifying marks/symbols with members who engage in specific criminal activity. Therefore, a group of 3 or more individuals with a common name who participate together in a pattern of committing crimes is a criminal street gang under PC 182.22. PC 186.22, also known as the Street Terrorism Enforcement and Prevention (STEP) Act, is California’s enhancement law. This law gives the prosecution agency the power to add more time to a prison sentence if they can prove the defendant’s criminal activity was part of street gang involvement.
GANG ENHANCEMENT FACTORS TO BE PROVEN
In order for the prosecution agency to succeed with a gang enhancement charge, they must prove that the defendant:
- Actively participated in a criminal street gang
- Knew members engaged in a pattern of gang activity
- Willfully assisted with their criminal acts.
The most important part of the above factors is that the defendant actively participated in the gang, meaning that the defendant acted in more than a passive manner. This does not mean the defendant has to be the leader of the gang, but rather a gang member who participates in criminal activities with the gang.
“PATTERN OF CRIMINAL ACTIVITY” EXPLAINED
If we look back above at the definitions within PC 186.22, we can see that it is necessary for the prosecution agency to prove that there was a pattern of criminal activity. This means when the defendant(s):
- Commit two or more crimes (on the list below), and
- On two or more separate occasions by two or more people
- Within a three-year period of each other
- With at least one crime committed after September 1988, and
- The prosecutor must be able to prove the crimes were gang related.
Based on the above definition, the prosecuting agency must prove the crimes were of a certain type in order to prove a pattern of criminal activity. California has a list of specific crimes that establish this. This list includes felony crimes which are generally categorized as “serious” and “violent,” including:
- PC 211- robbery
- PC 459 – burglary
- PC 245(a)(1) – assault with a deadly weapon
- PC 245(a)(2) – assault with a firearm
- PC 246 – shooting at inhabited dwelling or car
- PC 422 – criminal threats
- PC 451 – arson
- PC 187 – murder
- PC 205 – mayhem
- PC 206 – torture
- PC 213 – home invasion
- PC 215 – carjacking
- PC 136.2 – witness intimidation
- PC 518 – extortion
- PC 487 – grand theft
- PC 487(d)(1) – grand theft auto
- PC 207 – kidnapping
- PC 261 – rape
- PC 484 – credit card theft
- PC 594 – felony vandalism
- Possession of firearms
- Obtaining fake identification from the DMV
- Drug trafficking, sales, and distribution
- Any felony crime which inflicts a great bodily injury
- Certain California sex crimes
For a prosecutor to show that a defendant promoted, assisted, or furthered a felony crime by a gang, the prosecuting agency must show you committed or aided and abetted a felony crime with other gang members.
PENAL CODE 186.22 PENALTIES
California Penal Code 186.22(a) states that participation in a gang is a “wobbler,” meaning that the case can be filed as a misdemeanor or a felony, based on the facts of the matter. Misdemeanors and felonies carry different penalties.
If the defendant is charged with a misdemeanor, the penalties include up to 1 year in county jail and a fine up to $1,000. However, if the defendant is charged with a felony, the penalties include 16 months, 2, or 3 years in a California state prison and a fine up to $10,000.
Additionally, Penal Code 186.22(b) states a defendant may receive an enhanced sentence if convicted of a crime when the prosecutor can prove the enhancement elements. These two elements are:
- The defendant committed, or attempted to commit a crime that was to benefit the gang, directed from the gang, or was associated with the gang
- When the defendant committed the crime, your intent was to assist, promote, or further the criminal conduct by gang members.
It is important to note that California law does not require the defendant to be an active gang member when the crime was committed in order to receive an enhance sentence.
The gang enhancement punishment time will increase the defendant’s prison sentence based on the underlying crime charged. If the crime charged is a misdemeanor, the defendant could face up to 1 year, but a minimum of 180 days in jail. If the crime charged is a felony, the defendant will receive an enhanced sentence in addition to the underlying crime’s punishment in the amount of 2, 3, or 4 years in California state prison.
However, if the underlying crime is one which is classified as a serious felony under California Penal Code 1192.7(c), the enhancement on prison time could be 5 years. Additionally, violent felony matters, which are defined under California Penal Code 667.5(c), may bring the enhanced prison time to 10 years. Finally, there are other felonies which may bring the additional prison time up to 15 years. These other felonies include carjacking (PC 215), home invasion robbery (PC 213), and drive by shooting causing death or serious bodily injury (PC 12022.5).
Defendants should note that there are also other considerations which the court may examine, such as if the offense occurred within a school zone.
HOW TO FIGHT A PC 186.22 GANG ENHANCEMENT CHARGE
Our experienced team of criminal defense lawyers can use a number of tactics to challenge gang enhancements, such as challenging your affiliation in a gang, proving that you were not acting for the benefit of a gang, or by fighting the underlying felony crime charged. The facts of your particular case will also bring up additional legal defenses to use against a PC 186.22 gang enhancement.
If you, or someone you know, is charged with a crime that includes gang sentencing enhancement, please contact our office so our team of criminal defense attorneys can review the details of your matter.