Criminal Defense: Penal Code 186.22, the “gang enhancement” laws
Gang activity and 186.22
California has enacted specific laws regarding gang activity. This means that if a person is determined to be a member of a criminal street gang, he or she can be charged as such. A criminal street gang is a group of people determined to be acting in concert for illegal purposes. The local cops or sheriffs have usually identified the gang and noted their activities. Often, there are gang units within the police unit to monitor the various gangs and then are called upon by the prosecution to speak as to the gang in general and the individual members specifically.
California legislators established Penal Code 186.22 to address the issues of gang activity. It can be charged as a separate crime, or as an enhancement. Both will be discussed separately in this article.
Gang allegations in California should be taken very seriously, as they can not only add time to your current charges, but could implicate future charges, should any arise. Often, if a person lives in a certain neighborhood or associates with “known” gang members, he or she will be labeled a gang member and charged as such. A criminal gang in California has three or more members, and has a common name or identifying sign/symbol.
Gang activity charge under 186.22
The statute is written to charge 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”. (emphasis added)
This means that the prosecutor must prove three main elements:
1) The person actively participates in a criminal street gang
2) With the knowledge that the members are engaged in illegal gang activity
3) And that he or she willfully promotes such activity
The gang charge can be either a misdemeanor or a felony. If it is charged as a misdemeanor, you will be facing up to 1 year in county jail. If it is charged as a felony, you will be facing 16 months, 2 or 3 years, depending on the facts of the case.
There are defenses and ways to negate those elements. For example, you can show that while maybe you were affiliated with a gang, you are no longer active. Though, it is not good to admit past affiliation if the DA does not have concrete evidence to use against you. This is why it is important to consult a criminal defense attorney who is knowledgeable in gang activity. The Law Firm of Stephanie M. Arrache, a law firm in Palm Springs, CA, has had many successful outcomes with reducing and/or dismissing gang charges.
Gang activity enhancements under 186.22
Often times the prosecutor will charge 186.22 as an enhancement, rather than as a separate charge.
If the underlying felony is anything other than a serious felony or a violent felony, the enhancement will be charged as two, three or four years, at the courts discretion. Under this statute, the court is to award the middle term, unless there are mitigating or aggravating factors. The court must state any of those reasons on the record to explain why two or four years was awarded, instead of three.
If the underlying felony is a serious felony, the enhancement will be for five years. Serious felonies are listed under Penal Code 1192.7.
If the underlying felony is a violent felony, as listed under Penal Code 667.5, the enhancement will be for an additional 10 years in prison.
If the underlying felony occurs near any school during operating hours, or when minors are present, the court will consider that an aggravating factor.
If the underlying felony is a home invasion robbery or a carjacking, and the court determines that it is done to further the street gang, the individual will be sentenced to 15 years to life in the state prison. If the underlying felony is extortion or witness intimidation, the individual will be facing 7 years to life in the state prison.
Contact the Law Office of Stephanie M. Arrache, a criminal defense firm, if you have any questions about gang enhancements.
Law Office of Stephanie M. Arrache
A Criminal Defense Firm
PO Box 3297
Palm Springs, CA 92262
Office: (760) 237-8295
Cell: (760) 668-8295