Criminal Street Gangs

Under the law, a “criminal street gang” is generally defined as:

• a group of three (3) or more people
• with a primary activity that includes committing certain criminal acts
• with a common name or symbol (“gang sign”)
• whose members alone or together engage in or have in the past engaged in a “pattern of criminal activity”

This broad definition can be a problem particularly for people who live in high crime areas or areas where it is generally known that gangs are present. If they commit a crime – whether a member of a gang or not – they may be unfairly accused of being a part of a criminal street gang.

Unlawful Gang Participation (Penal Code § 186.22(a))

Participation in a gang is illegal under certain circumstances. Gang participation may be charged as a separate and discrete criminal offense – not just as an “enhancement” or additional penalty added to another charge such as a robbery that may have been committed for the benefit of the gang.

Unlawful gang participation can be charged if a person:

• Actively participates in any criminal street gang;
• Knows that the members of the gang engage in or have engaged in a pattern of criminal gang activity; and
• Willfully promotes, furthers or assists in any felonious criminal conduct by members of the gang

Unlawful gang participation is a “wobbler” and can be filed as either a misdemeanor or a felony. If charged as a felony, it is punishable by 16 months, 2 years, or 3 years in state prison depending on the defendant’s background and the facts of the case at issue.

Gang Enhancements (Penal Code § 182.22(b) and other related sections)

Committing certain crimes for the benefit of, at the direction of, or in association with a “criminal street gang” can result in significant additional punishment added to any punishment given for the underlying crime itself. This additional punishment is called a “gang enhancement.”

It is NOT necessary to be a member of a gang to be subject to a gang enhancement. It is only necessary that the defendant committed the crime to benefit a criminal street gang, or at the direction of or in association with a criminal street gang.

The number of years a gang enhancement carries varies by crime (and the facts of the crime as well). For example:

• Any Felony– Enhancement: 2, 3 or 4 years
• Specified “Serious Felonies”– Enhancement: 5 years
• Specified “Violent Felonies”– Enhancement: 10 years
• Home Invasion Robbery– Enhancement: 15 years
• Carjacking– Enhancement: 15 years
• Shooting At An Inhabited Dwelling– Enhancement: 15 years
• Discharging A Firearm From A Vehicle In The Commission Of Felony– Enhancement: 15 years
• Extortion or Threats To Victims Or Witnesses– Enhancement: 7 years
• Soliciting A Minor To Participate In A Criminal Street Gang To Commit Certain Felonies– Enhancement: 3 years

The specific facts and circumstances of any case alleging a gang enhancement must be closely analyzed to determine the possible impact of the enhancement. For certain enhancements, the enhancement alone can range up to a minimum life sentence based on the facts of the case.

Defending Against Gang Membership Charges And Enhancements

People are often wrongfully accused of being gang members or acting to promote a gang because of their ethnic or racial background, the neighborhood in which they live, or the people they know. These false bases of identifying gang membership can be effectively challenged.

Even if a defendant is a gang member, that does not mean that any crime is automatically meant to benefit or promote the gang and is therefore subject to a gang enhancement. An experienced attorney may be able to challenge the prosecution’s gang allegations and ultimately defeat a gang charge or enhancement.