Gang Enhancements: California Penal Code 186.22         

Gang Enhancements: California Penal Code 186.22

California has carefully drafted laws to curtail the street crime and gang activity in the state. The laws were (Penal Code §§186.21-186.30) enacted in 1988 under the Street Terrorism Enforcement &Prevention [S.T.E.P.] Act. In these, the penal code §§186.22 is at the center of the state’s strict stance against the street gang crimes and enables the prosecutor to charge the person with a felony for a misdemeanor and to increase the sentence and jail time of the person.

Street Gang Definition

The subsection (f) of the penal code 186.22 provides the definition of the street gang consisting of following three elements.

  • An ongoing association of three or more participants with a common name or identifying symbol.
  • The association’s primary activity is to commission one or more crimes listed in the California’s penal code.
  • The participants of the association must separately or together be engaged in a pattern of criminal gang activity.

Common Name or Identification Symbol

The common name or identification symbol is shared by all members. If the gang uses multiple names, the prosecutor can establish this point by using at least one common name shared by all participants.

Primary Activity

The association’s one of the primary activities is to predicate one or more crimes listed in section (e) of the §§186.22. Currently, there are 33 offenses on the list, including manslaughter, looting, robbery, theft, assault, firearm dealing, and drug abuse, sales, distribution or manufacturing.

Pattern of Criminal Gang Activity

            The next part of the definition is the pattern of criminal gang activity. The pattern of gang activity is established through the following points,

  • At least one of the crime was committed after September 1988.
  • Committed two or more crimes from the list of §§186.22 (e)
  • The crimes were committed at two separate occasions by two or more persons
  • The crimes were committed less than three years apart.
  • The prosecution established beyond doubt that the crimes were related to gang activity.

For example, if three participants name themselves ‘Blaze’ and get a pistol tattoo on their arm, it fulfills the first part of the definition to be called as a street gang. However, if the group only carries concealed firearm and has not committed any other crime from the list, the association cannot qualify as a gang because of lack ‘pattern of criminal gang activity.”

Clause of “Promoted, furthered, or assisted”

According to the clause of “Promoted, furthered, or assisted”, the prosecutor should establish beyond considerable doubt that the person committed the crime directly or abetted or aided the listed crime under the California’s enhancement law.

We at Chesley’s law firm make use of this clause to defend our clients. This clause can only be implemented if the crime is committed, aided or abetted other gang members and a person who commissioned the felony on his own or alone cannot be convicted under this clause. However, the person can be convicted of a gang-related crime under another section.

The Testimony of Gang Expert

The prosecutor in the gang enhancement cases has the responsibility to prove above-mentioned elements beyond considerable doubt. The elements are proven through the testimony of ‘gang experts.’ The gang experts are the police officers who work and investigate the gangs and testify the pattern of criminal gang activity. The previous convictions of other members of the gangs are presented to the court in the form of certified copies. Then, the gang expert testifies that the convicted were the part of the same gang as the current defender.

The gang expert has the primary importance in such cases, and some of the gang experts are real experts with extensive knowledge about gangs and their organized pattern of crime. Because of its central authority, it is imperative that all the lawyers must be familiar with the gang expert. These issues are properly raised pretrial under the guise of in limine or preliminary fact motions.

Chesley Lawyers, Your DA in Gang Crimes

At Chesley lawyers, we investigate a gang-related case thoroughly to pinpoint the loopholes and to prepare for a successful trial. We are trained by gang experts and have years of experience in working with them on the court. With our seasoned defense attorney practice and knowledge of gang sentence enhancement, you stand a better chance of being acquitted or lesser degree charges.

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