California Penal Code section 186.22 is part of the California Street Terrorism Enforcement and Prevention Act, enacted in 1988. It is sometimes referred to as California’s street gang enhancement law, and it imposes specific criminal penalties for people who commit crimes in association with gangs. If you have been charged with a gang-related crime, it is critical that you consult an experienced California criminal defense attorney to develop the strongest possible defense.
What Defines Gang Activity Under the Law?
In California, a “criminal street gang” is any ongoing organization, association, or group of three or more persons that actively participates in committing crimes. A gang engages in a pattern of committing two or more of 33 crimes enumerated in the statute. A criminal gang may also maintain a common name and/or symbol.
There are three parts to Penal Code section 186.22. The first subdivision of the code deals with the separate, substantive crime of engaging in gang activity and the second subdivision discusses sentence enhancements based on gang activity. The third subdivision permits the prosecution to charge a misdemeanor as a felony if it is committed in association with a street gang with the intent to promote, further, or assist in a gang’s criminal conduct.
The first part of the code sets forth a substantive charge that can be brought against a person who “actively participates” in a street gang if certain criteria are proved. If you are charged under this provision, the District Attorney must prove that you actively participated in a gang as it is defined above, that you knew the gang members involved regularly engaged in a pattern of criminal gang activity, and that you willfully “promoted, furthered or assisted” the felonious conduct of the gang.
“Active” participation requires more than passive involvement, but also means that you can be charged even if you do not spend most of your time with the gang. This charge can be brought not only against gang members directly involved in the commission of a felony or prior felonies, but also against those who help gangs on a single occasion. It is punishable by up to three years in the California State Prison.
Enhanced Punishment for Crimes Involving Gangs
The second subdivision of Penal Code section 186.22 describes a “special allegation” that enhances the penalty for a gang-related crime by 2-10 years depending on whether the underlying felony is considered a serious or a violent crime. If a special allegation is being sought, a prosecutor must first secure a conviction for the underlying felony. Examples of serious felonies under this law include certain drug crimes, and assault with a deadly weapon against a police officer. Violent felonies include murder, mayhem, certain sex crimes, and extortion.
If you commit a gang-related crime that is both serious and violent, you may be subject to the more severe gang enhancement of ten years. However, judges have the discretion to sentence you at a lesser enhancement level or to strike the gang enhancement altogether, which is one reason why it is so important to hire an experienced criminal defense attorney with a good reputation before the court.
The gang enhancement provisions may also be used in certain cases to impose a life sentence. Among the convictions that may be increased this way are home invasion robbery, carjacking, and drive-by shootings that cause death or great bodily injury. If the underlying conviction is for a felony punishable by life imprisonment and you are subject to a gang enhancement, you will not earn a credit towards parole eligibility until you have served at least 15 years in prison.
Michael Wise of the Wise Law Group has taught classes to law enforcement and civilians on the California Gang Laws. Mr. Wise previously served as a Gang Prosecutor and has handled several cases which allege gang motive or benefit. Mr. Wise understands the culture of criminal street gangs and is often consulted by other attorneys about how to defend or approach a gang related crime due to his experience as both a prosecutor and defense counsel in handling gang allegations.
Sentencing in connection with gang laws is complex, and the penalties are very harsh. If you or a loved one is accused of being associated with a gang or charged under Penal Code section 186.22, you should consult with an experienced Sacramento criminal defense attorney as soon as possible to mount a forceful defense. Contact the Wise Law Group at 916-498-9473 or via our online contact form.