California Penal Code 186.22PC
PC 186.22 – Criminal Gang Activity, aka “Gang Enhancement”
Criminal Gang Activity – Table of Contents
Gangs in Los Angeles can be traced back to the 1920s, and by the 1980s, there were significant anti-gang initiatives in California and throughout the Unites States. According to the FBI, there are currently 20 Violent Crime Task forces in California to target violent gang activity. Similarly, legislators have enacted laws to address gang activity.
Accordingly, California enacted the Street Terrorism and Enforcement Protection Act (STEP) designed to protect the right of all citizens “to be secure and protected from fear, intimidation, and physical harm caused by the activities of violent groups and individuals.” Specifically, section 186.22 addresses gang activity in two ways:
- section 186.22(a) makes it a crime to participate in a gang while promoting a felony
- section 186.22(b) provides for a sentence enhancement for committing a crime that benefits a gang.
Not surprisingly, since STEP was enacted, there have been numerous constitutional challenges to the law, but the California courts have consistently found the Act to be constitutional. Certainly, if you are charged under CA Penal Code 186.22 PC, for alleged criminal gang activity, you need an experienced criminal defense attorney to help you win your case, as well as ensure your constitutional rights are not violated.
Despite being quite lengthy, PC 186.22 consists of two major sections, as mentioned. First, section 186.22(a) enacts a substantive crime for any person who “actively participates” in a criminal street gang. More specifically, the law requires a person be a member of a gang, know that the gang engages in a pattern of criminal activity, and helps promote or assist the gang in criminal conduct. Second, section 186.22(b) provides for a sentence enhancement for any person convicted of a felony committed for the benefit of a gang.
Penal Code 186.22, Criminal Gang Activity – Elements
As with any criminal case, the prosecutor must prove every element of the crime beyond a reasonable doubt. In other words, you can, and should, win your case without providing any evidence if the prosecutor fails to meet this very high burden.
In order for a conviction under CA Penal Code 186.22(a) for gang activity, the prosecutor must prove the following elements:
- active participation in a criminal street gang
- knowledge that the gang members engaged in a pattern of gang crimes (enumerated under PC 186.22(e))
- willful assistance, furthering, or promoting felony criminal conduct by the gang.
More specifically, courts have defined active participation as requiring more than passive participation, or participation in name only. Furthermore, a criminal street gang is defined under PC 186.22(f) as a group of three or more with: (1) a common name or identification sign or symbol; (2) a primary activity of committing criminal offenses (enumerated under PC 186.22(e); and (3) whose members actively engages or have engaged, in a pattern of criminal activity.
In order for a court to impose a sentence enhancement under PC 186.22(b), the court must find:
- the crime was committed or attempted for the benefit of, at the direction of, or in association with a criminal street gang and
- at the time the crime was committed, the person intended to assist, further or promote criminal gang conduct.
Notably, in order for an enhancement under PC 186.22(b), there must be a conviction of the underlying crime. In other words, the prosecutor must gain a conviction of the alleged crime committed to benefit a gang. Also, unlike PC 186.22(a), there is no statutory requirement of “active participation” in a gang at the time the crime was committed. In other words, you need not be in the gang, but can be convicted for merely assisting, furthering, or promoting a gang’s criminal conduct.
Furthermore, PC 186.22(g) clarifies the term “benefit” used in PC 186.22(b)(1). Specifically, the benefit to a criminal street gang must be more than “reputational.” Examples of a benefit that is more than reputation include financial gain, retaliation or targeting a rival gang member or intimidating a potential witness or informant. Also, under PC 186.22(e)(2), the alleged crime at issue cannot be used to prove a pattern of criminal gang activity under PC 186.22(a).
Certainly, like most criminal statutes, PC 186.22 for gang activities is very complicated. An experienced criminal defense attorney can not only explain the law to you but can review the strengths and weaknesses of the case. More importantly, an attorney can negotiate with the prosecutor which can lead to charges being dropped when the case is weak.
First, section 186.22(a) can be charged as either a misdemeanor or a felony. Also known as a “wobbler,” the prosecutor has the discretion to charge a misdemeanor or a felony based on various factors including the severity of the harm, past criminal history, and any other aggravating factors.
If charged as a misdemeanor, the punishment includes:
- incarceration in a county jail for no more than one year, and/or
- a fine not to exceed $1,000.
A conviction of a felony offense is punishable by:
- incarceration in a state prison for no more than three years, and/or
- a fine not to exceed $10,000.
Second, the sentence enhancements under section 186.22(b) can be quite severe. The statute provides for additional prison time based on the severity of the felony. Additional terms of up to four, five, 10, and 15 years to life can be imposed depending on the nature of the felony. For example, violent felonies include robbery, arson, kidnapping and carjacking, and a gang-related conviction for a violent felony will result in a sentence enhancement up to 10 years. Notably, the sentences are served consecutively, meaning the sentence enhancement does not begin until after you have served the sentence for the underlying felony.
An experienced criminal defense attorney can help you avoid not only a conviction for any charge under PC 186.22(a) but also help you win your case for any underlying felony charge that could trigger a sentence enhancement under PC 186.22(b). Also, an experienced defense attorney can review the case for strengths and weaknesses and argue that charges be dropped or the case be dismissed entirely.
If a case does go to trial, an experienced criminal defense attorney will work for an acquittal.
Defenses to PC 186.22(a) include:
- not an active member of a gang or no gang affiliation
- no knowledge or no pattern of gang crimes
- did not willfully assist, further or promote criminal conduct.
Defenses to PC 186.22(b) include:
- insufficient evidence of the underly felony (or no conviction)
- no benefit to a gang.
If you or a loved one is being charged with a gang-related crime under Penal Code 186.22 PC, we invite you to contact us immediately for a free case review. Schedule an appointment to meet with us in person, or feel free to submit an evaluation online and we will get in contact with you ASAP. We can provide a free consultation in our office, or by phone.
Our experienced and assiduous Los Angeles Criminal Defense Lawyers will be sure to fight until the end to reduce or drop your charges completely.
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