Fighting “Gang Related” Felony Charges
Since the 1980s many states have adopted legislation and laws specifically drafted to combat street gangs and to make it easier to prosecute their offenses. California has led the nation in laws written to prosecute gangs. In California, any felony offense that is thought to be “gang related” is subjected to an enhanced penalty on conviction. Although the implementation of the enhancements law was intended to reduce gang violence, in many situations, prosecutors instead use the law to wrongly associate individuals with gangs to increase their penalties and charges. Gang related convictions not only bring more severe penalties, but they could even lead to having the convicted sent to prison outside their geographic area. Over the years, we have helped gang-involved individuals of all ethnic backgrounds. We have a deep insight and understanding of gang culture, and received extensive training from gang experts. This unique insight allows us to better represent those accused of gang-related offenses.
Crime Must be Committed for the Benefit of the Gang
In any gang-related offense, the prosecutor must prove beyond a reasonable doubt that the crime was for the benefit of a gang, at the direction of a gang, and in association with a criminal street gang. This is usually done through the prosecution’s expert witness.
Changes to “Gang-Related Charges” (Proposition 21):
Proposition 21 made three major changes to the law as concerns gangs and gang activities. Those changes are:
- California Penal Code § 186.22, 186.26 makes gang related crimes subject to increased punishments and enhancements.
- California Penal Code § 190.2 makes gang related murders a Special Circumstance and subject to Capital Punishment.
- California Penal Code § 186.30 forces those convicted of gang related crimes to register with local law enforcement agencies.
California Penal Code § 186.22 and the Step Act (PC §§ 186.20 et seq.):
- In addition to charged crimes these laws criminalize certain specified acts connected with street gangs and provide additional punishments beyond the charged crime(s):
- In addition to any other charges, it is a separate crime to participate in a criminal street gang,
- To coerce a minor to participate in a criminal street gang,
- Knowingly supply a firearm to a gang member for use in certain specified crimes,
- Qualifying street gang crimes are subject to an enhancement which when pled and proven greatly enhance sentencing
- A building or place used by street gang members are declared nuisances.
California Penal Code § 186.21
The Legislature hereby finds and declares that it is the right of every person, regardless of race, color, creed, religion, national origin, gender, age, sexual orientation, or handicap, to be secure and protected from fear, intimidation, and physical harm caused by the activities of violent groups and individuals. It is not the intent of this chapter to interfere with the exercise of the constitutionally protected rights of freedom of expression and association. The Legislature hereby recognizes the constitutional right of every citizen to harbor and express beliefs on any lawful subject whatsoever, to lawfully associate with others who share similar beliefs, to petition lawfully constituted authority for a redress of perceived grievances, and to participate in the electoral process.
The Legislature, however, further finds that the State of California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods. These activities, both individually and collectively, present a clear and present danger to public order and safety and are not constitutionally protected. The Legislature finds that there are nearly 600 criminal street gangs operating in California, and that the number of gang-related murders is increasing. The Legislature also finds that in Los Angeles County alone there were 328 gang-related murders in 1986, and that gang homicides in 1987 have increased 80 percent over 1986. It is the intent of the Legislature in enacting this chapter to seek the eradication of criminal activity by street gangs by focusing upon patterns of criminal gang activity and upon the organized nature of street gangs, which together, are the chief source of terror created by street gangs. The Legislature further finds that an effective means of punishing and deterring the criminal activities of street gangs is through forfeiture of the profits, proceeds, and instrumentalities acquired, accumulated, or used by street gangs.
People v. Superior Court (Johnson) (2004) 120 CA 4th 950, 955 holds that the Step Act is properly applied to persons whose only activity was painting graffiti because vandalism is one of the several non-violent felonies enumerated in PC § 186.21 and, therefore, is not in contravention to the intent expressed in PC § 186.21.
Definition of a “Gang-Related Crime”
California Penal Code § 186.22
(a) 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, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.
(b) (1) Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows:
(A) Except as provided in subparagraphs (B) and (C), the person shall be punished by an additional term of two, three, or four years at the court’s discretion.
(B) If the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years.
(C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years.
(2) If the underlying felony described in paragraph (1) is committed on the grounds of, or within 1,000 feet of, a public or private elementary, vocational, junior high, or high school, during hours in which the facility is open for classes or school-related programs or when minors are using the facility, that fact shall be a circumstance in aggravation of the crime in imposing a term under paragraph (1).
(3) The court shall order the imposition of the middle term of the sentence enhancement, unless there are circumstances in aggravation or mitigation. The court shall state the reasons for its choice of sentencing enhancements on the record at the time of the sentencing.
(4) Any person who is convicted of a felony enumerated in this paragraph committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of:
(A) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 3046, if the felony is any of the offenses enumerated in subparagraph (B) or (C) of this paragraph.
(B) Imprisonment in the state prison for 15 years, if the felony is a home invasion robbery, in violation of subparagraph (A) of paragraph (1) of subdivision (a) of Section 213; carjacking, as defined in Section 215; a felony violation of Section 246; or a violation of Section 12022.55.
(C) Imprisonment in the state prison for seven years, if the felony is extortion, as defined in Section 519; or threats to victims and witnesses, as defined in Section 136.1.
(5) Except as provided in paragraph (4), any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served.
(c) If the court grants probation or suspends the execution of sentence imposed upon the defendant for a violation of subdivision (a), or in cases involving a true finding of the enhancement enumerated in subdivision (b), the court shall require that the defendant serve a minimum of 180 days in a county jail as a condition thereof.
(d) Any person who is convicted of a public offense punishable as a felony or a misdemeanor, which is committed for the benefit of, at the direction of or in association with, any criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison for one, two, or three years, provided that any person sentenced to imprisonment in the county jail shall be imprisoned for a period not to exceed one year, but not less than 180 days, and shall not be eligible for release upon completion of sentence, parole, or any other basis, until he or she has served 180 days. If the court grants probation or suspends the execution of sentence imposed upon the defendant, it shall require as a condition thereof that the defendant serve 180 days in a county jail.
(e) As used in this chapter, “pattern of criminal gang activity” means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons:
(1) Assault with a deadly weapon or by means of force likely to produce great bodily injury, as defined in Section 245.
(2) Robbery, as defined in Chapter 4 (commencing with Section 211) of Title 8 of Part 1.
(3) Unlawful homicide or manslaughter, as defined in Chapter 1 (commencing with Section 187) of Title 8 of Part 1.
(4) The sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture controlled substances as defined in Sections 11054, 11055, 11056, 11057, and 11058 of the Health and Safety Code.
(5) Shooting at an inhabited dwelling or occupied motor vehicle, as defined in Section 246.
(6) Discharging or permitting the discharge of a firearm from a motor vehicle, as defined in subdivisions (a) and (b) of Section 12034.
(7) Arson, as defined in Chapter 1 (commencing with Section 450) of Title 13.
(8) The intimidation of witnesses and victims, as defined in Section 136.1.
(9) Grand theft, as defined in subdivision (a) or (c) of Section 487.
(10) Grand theft of any firearm, vehicle, trailer, or vessel.
(11) Burglary, as defined in Section 459.
(12) Rape, as defined in Section 261.
(13) Looting, as defined in Section 463.
(14) Money laundering, as defined in Section 186.10.
(15) Kidnapping, as defined in Section 207.
(16) Mayhem, as defined in Section 203.
(17) Aggravated mayhem, as defined in Section 205.
(18) Torture, as defined in Section 206.
(19) Felony extortion, as defined in Sections 518 and 520.
(20) Felony vandalism, as defined in paragraph (1) of subdivision (b) of Section 594.
(21) Carjacking, as defined in Section 215.
(22) The sale, delivery, or transfer of a firearm, as defined in Section 12072.
(23) Possession of a pistol, revolver, or other firearm capable of being concealed upon the person i violation of paragraph (1) of subdivision (a) of Section 12101.
(24) Threats to commit crimes resulting in death or great bodily injury, as defined in Section 422.
(25) Theft and unlawful taking or driving of a vehicle, as defined in Section 10851 of the Vehicle Code.
(26) Felony theft of an access card or account information, as defined in Section 484e.
(27) Counterfeiting, designing, using, attempting to use an access card, as defined in Section 484f.
(28) Felony fraudulent use of an access card or account information, as defined in Section 484g.
(29) Unlawful use of personal identifying information to obtain credit, goods, services, or medical information, as defined in Section 530.5.
(30) Wrongfully obtaining Department of Motor Vehicles documentation, as defined in Section 529.7.
(31) Prohibited possession of a firearm in violation of Section 12021.
(32) Carrying a concealed firearm in violation of Section 12025.
(33) Carrying a loaded firearm in violation of Section 12031.
(f) As used in this chapter, “criminal street gang” means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.
(g) Notwithstanding any other law, the court may strike the additional punishment for the enhancements provided in this section or refuse to impose the minimum jail sentence for misdemeanors in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition.
(h) Notwithstanding any other provision of law, for each person committed to the Division of Juvenile Facilities for a conviction pursuant to subdivision (a) or (b) of this section, the offense shall be deemed one for which the state shall pay the rate of 100 percent of the per capita institutional cost of the Division of Juvenile Facilities, pursuant to Section 912.5 of the Welfare and Institutions Code.
(i) In order to secure a conviction or sustain a juvenile petition, pursuant to subdivision (a) it is not necessary for the prosecution to prove that the person devotes all, or a substantial part, of his or her time or efforts to the criminal street gang, nor is it necessary to prove that the person is a member of the criminal street gang. Active participation in the criminal street gang is all that is required.
(j) A pattern of gang activity may be shown by the commission of one or more of the offenses enumerated in paragraphs (26) to (30), inclusive, of subdivision (e), and the commission of one or more of the offenses enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive of subdivision (e). A pattern of gang activity cannot be established solely by proof of commission of offenses enumerated in paragraphs (26) to (30), inclusive, of subdivision (e), alone.
Therefore, the elements comprising proof of a criminal street gang are:
- An ongoing organization, association or group of three or more persons
- The organization, association or group has as one of its “primary activity” the commission of a criminal act specified in Subsection (e) above
- The organization, association or group has a common name, symbol or design
- The members (individually or collectively) of the organization, association or group engage in or have engaged in a “pattern of criminal gang activity”.
Note: These elements are almost always proved by the People through the testimony of the “gang expert” who is a police officer that works gangs. The “pattern of gang activity” is established by the introduction of certified copies of convictions of other members of the same gang and the gang expert testifies that each of the persons previously convicted of an enumerated crime was a member of the same gang as the present defendant. So the gang expert is critical to the proof of these crimes. Some gang experts are excellent and highly qualified; others are experts because they say they are. Accordingly, in analyzing and preparing a gang case, all the lawyers, prosecution and defense, have to be intimately familiar with the resume of the expert. These issues are properly raised pre trial under the guise of in limine or preliminary fact motions.
Elements necessary to define “primary activity”:
People v. Vy (2004) 122 CA 4th 1209, 1224 In Vy the gang’s criminal activities was dormant for several years prior to the charged crime. However, violent crimes, including an attempted murder, occurring within three months of the charged crimes was sufficient to establish the “primary activities” element required by subsection (f) above. Additionally, the crime of attempted murder is a predicate crime enumerated in the statute.
People v. Alexander L. (2007) Here the expert testified, without any foundation being shown for his knowledge, that he knew that defendant’s group were involved in criminal activities mostly graffiti. The expert was not able to testify to any substantial evidence that defendant’s group had consistently and repeatedly committed criminal activity listed in subsection (e) above. Held: insufficient evidence to base a conviction upon.
People v. Martinez (2008) 158 CA 4th 1324, 1330 Here the gang expert detective testified that he had dealt wwith defendant’s gang for 8 years and that the gang’s primary activity was robbery and assault was held sufficient to sustain a conviction.
The proof required to establish a “pattern of criminal activity” is:
- The commission, attempted commission or conspiracy to commit two or more of the crimes listed in subsection (e)
- One of the offenses must have occurred after September 26, 1988
- The last of the two requisite crimes must have been committed within three years after the first crime
- The predicate crimes must have been committed on separate occasions
- The predicate offenses must have been committed by at least two different people.
There is no requirement that two or more of the persons committing the predicate crimes were gang members when the crimes was committed. People v. Augborne (2002) 104 CA 4th 362, 374.
In 2005 California Penal Code § 186.22(e) was amended adding various crimes such as identity theft and other related offenses which if committed by members of a criminal street gang will establish a pattern of criminal activity. These new offenses alone cannot establish a pattern of criminal activity; although these new crimes may be used in establishing a pattern of criminal activity the commission of one of the crimes listed before the 2005 amendments must be shown also. PC §186.22 (j).