In 1988, California introduced the Street Terrorism and Prevention Act (STEP) to tackle gang violence. Under California Penal Code (PC) 186.22, a criminal gang is defined as a group of 3 or more people with a shared name, mark, or symbol who mostly participate in criminal activities.

According to the STEP law, if you are a gang member or associate and you are sentenced to a felony, you will face punishment for the felony itself. Additionally, you will receive extra penalties because of your involvement with the gang. Generally, this means you will face some of the toughest penalties possible.

If you have been charged with gang involvement, the Monterey Criminal Attorney can help you create a strong defense. We will also work hard to prevent additional sentencing if you are convicted.

An Overview of ‘Participating in Street Gangs’ Under California Law

The law defines the crime of ‘participating in street gangs’ under the Penal Code (PEN) 186.22a. This definition includes three key points that the prosecution must prove for you to be found guilty.

The law states that it is a crime to willfully participate in a gang's activities or operations. The court can convict you if the prosecution can prove these three things:

  • You actively participated in the gang
  • You knew that gang members were committing crimes
  • You willfully helped or encouraged the gang’s criminal activities

Understanding the Assembly Bill 333

Assembly Bill (AB) 333, also known as The STEP Act, aims to address the harm caused by gang enhancements to families and communities across California. It seeks to correct racial imbalances in gang enhancements under Penal Code (PC) 186.22 by adding Section 1109.

AB 333 aims to:

  • End the practice of labeling people as gang members just because they come from the same community, are related, or know each other
  • Narrow the range of crimes that can lead to gang enhancements
  • Stop using past charges as evidence of a “pattern” of gang activity
  • Show clear evidence of the defendant’s current involvement in gang activity
  • Keep gang-related allegations separate from the main charges during the trial

To understand what AB 333 changes, it is important to know the old law:

Old Gang Enhancement Law

Under the previous California PC 186.22(b), if you were convicted of certain crimes, you could face a harsher sentence if the prosecution proved that:

  • The crime was committed to benefit the gang.
  • You intended to help, support, or advance the gang’s criminal activities.

The old law defined a “criminal street gang” as a group of three or more people bearing a common name or symbol, where the group’s main activities included committing crimes, and the members were engaged in patterns of criminal behavior, either individually or together.

Under the old law, gang enhancement could turn a misdemeanor into a felony with up to 3 years in prison. For felonies, it could add two more years to life in prison.

New Gang Enhancement Law

Assembly Bill (AB)333 changes PC 186.22 by defining some terms and raising the guidelines for using gang enhancements. Under this bill, you can only face a harsher sentence if the prosecution proves:

  • The offenses committed are part of patterns of gang activity
  • The acts have benefited the gang in a way that goes beyond just improving its reputation

The new law makes it clear that the current charge cannot be used as evidence of a criminal gang activity pattern. The prosecution must show a pattern through other past criminal acts.

By ensuring that the benefit to the gang is more than just reputational, the new law forces the prosecution to prove a real connection between you and the gang. Under the old law, you could be convicted of gang activity simply for being from a single neighborhood, having a relation with the gang, or knowing gang members.

Additionally, AB 333 removes certain crimes like felony vandalism, looting, and specific identity fraud activities from the list of offenses that count as part of “patterns of criminal gang activities.”

If the prosecution seeks a gang enhancement under the new law, they must first prove your guilt for the underlying offense. The sentence enhancement would then be decided in a separate proceeding. Charges of active gang participation will be tried separately from other charges that do not involve gang enhancements.

The new law also changes the definition of a “criminal gang.” It now means a group of three or more people bearing a common name or symbol, where the group’s main activity is committing specific criminal acts. The members of the gang need to actively participate in criminal activities together rather than acting separately.

With AB 333, the court can decide on a fair sentence for gang-related crimes until January 1, 2023. After that date, the old law would have reverted to a standard, middle-term sentence for such enhancements starting January 1, 2022.

Crimes That Lead to Gang Enhancement Penalties

When a gang member or the entire gang commits a crime for the benefit of the gang, you face stricter penalties than someone who perpetrates the same crime alone. In California, certain crimes that result in gang enhancement penalties include:

Robbery

Robbery can be linked to gang activities. According to PC 211, robbery happens when you unlawfully take another person’s property and keep it without their permission or against their will. When a person commits robbery without gang involvement, it is considered a felony that can lead to up to nine years in prison if found guilty.

However, if you commit robbery as a gang member, you face even stiffer penalties under California’s gang enhancement laws. The prosecutor must prove the following for a conviction:

  • You belong to a gang
  • You took someone’s property without their consent
  • You used force, physical violence, or threats to sieze the property
  • You intended to keep the property for the gang’s benefit or to further gang activities

The specific details of your case will affect the charges and penalties you face. A criminal conviction will result in penalties for both gang enhancement and robbery.

California Assault

Under PEN 240, assault occurs when you intentionally hurt someone. Usually, the district attorney charges this as a misdemeanor. However, if you are a gang member or committed the assault to support the gang, the prosecutor can charge it as a felony. Gangs often use assault to seek vengeance.

Aggravated assault in connection with a gang happens when:

  • You use a lethal weapon or firearm to commit the assault
  • The assault causes serious injuries
  • You use a harmful chemical in the assault
  • You use a deadly weapon to assault a school employee

You can also face harsher penalties if you assault a police officer as an act of revenge for your gang. In these cases, your penalties may increase. However, a skilled lawyer could help you challenge these charges if the prosecution cannot prove beyond a reasonable doubt that:

  1. You committed the crime by using force against the victim
  2. You used the force to support or benefit the gang
  3. You knew your actions when you used the force

If the district attorney fails to meet this standard of proof, your lawyer can argue for reduced charges or dismissal of the case.

Murder or Homicide

Criminal gangs sometimes commit homicide or murder to retaliate or seek vengeance. If you kill someone to help or support a gang’s operations, you will incur extra penalties for gang involvement.

Arson

Gangs also commit arson to damage property. Arson is a serious crime with severe penalties, based on the damage, deaths, or injuries caused. An arson conviction for gang members will bring on increased penalties.

Drive-By Shootings

These are common among California criminal street gangs and often injure or kill many individuals, including bystanders. If you are sentenced for a drive-by shooting and it is linked to gang activities, you could face harsher penalties under PEN 186.22.

Intimidation of Witnesses

When a gang member faces charges, the street gang might threaten victims or witnesses to stop them from testifying. These threats aim to prevent any witness from helping in a criminal case that could convict a gang member. Intimidating witnesses is a serious crime, and doing it to support gang activities leads to stricter penalties.

Firing at Inhabited Houses or Vehicles

Gangs often shoot at houses or vehicles where people are present. They do this to show power, seek revenge, or send a message. Normally, this is a felony. However, if the shooting is connected to gang activities, you face increased penalties under PC 186.22.

Legal Punishments for Engaging in Street Gangs

Under California PC 186.22a, participating in a street gang is a “wobbler,” meaning prosecutors could charge it as either a felony or misdemeanor based on the details of the case.

If you face a misdemeanor charge under Penal Code 186.22a, you could receive up to one year in jail or hefty fines not exceeding $1,000. If charged with a felony charge for participating in an illegal gang, you might receive a prison sentence of up to 3 years or a $10,000 fine.

Gang Sentencing Enhancements

PC 186.22b, also known as the STEP Act, outlines the California gang enhancement. If you are found guilty of participating in a street gang under this law, you may face additional sentencing. The court could convict you of engaging in illegal activities with a gang only if the prosecution proves all the necessary elements of the charge. However, the prosecutor does not need to prove that you were an active gang member when committing the crime.

The provision does not specify a set increase in your jail or prison sentence. Instead, it provides different enhancements based on the type of offense you committed. The length of your additional sentence will depend on the specific crime involved.

Here is an overview of the sentence enhancements for different offenses under PC 186.22b:

  • Generic Felonies

If you are charged with a generic felony where a STEP Act applies, the judge will add an extra jail or prison term of two, three, or 4 years to your sentence. Keep in mind that there are many exceptions to this rule.

  • Violent Felonies

If you have been convicted of a violent felony and the STEP law applies, the presiding judge  will add ten years to your state prison sentence. California defines over 20 crimes as violent felonies. These include murder, mayhem, certain sex crimes, and any crime that causes significant injury to the victim.

  • Serious Felonies

If you are convicted of a serious felony where the STEP law applies, you will receive an additional prison term of 5 years. California defines over 40 offenses as serious felonies. Examples include certain drug offenses, assault with lethal weapons against police officers or firefighters, shooting at inhabited cars or properties, and issuing threats.

  • Specific Felony Crimes

PC 186.22b also includes certain specific felonies. If you commit these crimes with the intention of helping or supporting a gang, you may face longer prison sentences. For example:

  • Drive-by shootings, carjacking, robberies, or shootings at inhabited properties or vehicles could add 15 years to your sentence, and this could be extended to life in prison
  • Dissuading witnesses or committing extortion could add seven additional years to your sentence

If you are convicted of a felony that already carries a life sentence, you will serve life in prison. You cannot be considered for probation until you have served at least fifteen years.

  • Misdemeanors

Under PC 186.22d, a misdemeanor can be upgraded to a felony offense if it was committed to benefit or support a street gang. In misdemeanor cases, you may face a prison sentence of one, two, or three years rather than the usual one-year maximum in county jail for a misdemeanor. However, if the prosecution chooses to upgrade the charge, the statute does not allow them to apply additional gang enhancements under Penal Code 186.22b.

Other Factors Considered During Sentencing

When sentencing under the STEP law, the court might look at extra factors beyond the usual gang enhancements for different offenses. Here is what you should know:

Multiple Enhancements

Typically, you will receive only one enhancement for each crime, even if multiple charges are involved. However, if you commit multiple offenses that are separate in both distance and time and affect multiple victims, you will face separate charges and gang enhancements for each offense.

Interest of Justice

According to PEN 186.22, judges in California have the option to remove the gang enhancement if it seems unfair or unjust. This situation is quite rare and usually occurs only under unique circumstances, often with the assistance of a professional criminal defense lawyer.

School Zones

If you committed the crime on school grounds, near an educational facility, or during school hours, the court could consider this an aggravating factor, which could result in a harsher sentence.

How Gang Enhancement is Related to Other Sentencing Enhancements

In California, gang enhancements can be linked with other sentencing enhancements. This includes the ‘10-20-Life’ law and additional penalties for personal firearm use. Here is how these work together:

Personal Gun Use

PEN 12022.5 and PEN 12022 cover sentencing enhancements for using a gun. Under PEN 12022.5, you could receive an extra year in prison if someone involved in your felony is armed, even if you are not. Additionally, if you use a gun during a felony, you may face additional prison time of 3, 4, or 10 years, served consecutively.

Use a Gun, and You’re Done Law

The “Use a Gun, and You’re Done” law, or 10-20-Life law,  often applies alongside gang sentencing enhancements. This law is detailed under California PC 12022.53 and includes the following rules:

  1. Personal Use of a Gun—If you use a gun while committing a specific felony, the law adds an extra ten years to your prison sentence. This time will be served consecutively, meaning it will start after you complete the sentence for your original crime.
  2. Firing a Gun—If you fire a gun while committing a specific felony, you face an additional twenty years in prison, also served consecutively.
  3. Firing and Causing Injury or Death—If you fire a gun and cause loss of life or significant injury to a victim other than your accomplice, you could receive an extra twenty-five years to life in prison, also served consecutively.

Specific felonies that may trigger this law include murder, carjacking, robbery, and kidnapping. The 10-20-Life law interacts with PEN 186.22b gang sentence enhancement in two main ways:

  • Direct Use of a Firearm

If you use or fire a gun during a specific felony that you commit for the advantage of a criminal street gang, you could face a sentence increase under both PEN 186.22b and PEN 12022.53. This means your prison time could be extended under both laws.

  • Firearm Use by Others

If you are involved in a felony committed for a criminal gang’s benefit, and another person (not you) uses or fires a gun during the crime, you will still face a sentencing enhancement under PEN 12022.53. Typically, this law applies to someone who personally used or fired a gun, but it may also affect you if the crime was committed for criminal gang purposes.

It can be confusing to understand how these laws are related, especially if you did not personally use or discharge a firearm. For clarity and proper legal guidance, you should engage an experienced criminal defense attorney who understands criminal gang and firearm laws.

Firearm statutes and gang enhancement laws can be very complicated. If you work with an attorney who understands both areas of law, they will quickly spot if the prosecution is trying to impose an unfair or illegal sentence on you.

Defenses Against California Gang Enhancements

If you face charges under California’s street gang laws, your defense attorney has several strategies to challenge them. Here are some common defenses:

You Were Not An Active Gang Member

If the charge against you falls under PEN 186.22a, the prosecutor must prove that you were actively involved in the gang to apply an additional sentence. It is usually challenging for the prosecutor to show that you are a fully active gang member. Your defense lawyer can find weaknesses in their case and create doubt for the jury.

You Did Not Commit the Felony

You cannot receive a gang enhancement if you are not convicted of the felony in question. In criminal cases, the prosecutor must prove their case beyond a reasonable doubt. Often, they struggle to meet this high standard because of a lack of evidence.

You Were Not Acting for the Gang’s Benefit

If you were a gang member, the prosecutor must show that you perpetrated the felony to benefit the gang. If you acted on your own for personal reasons, you should not receive a gang enhancement. For example, if you committed robbery to support your family, not to help the gang, the enhancement should not apply. However, some prosecutors may still try to impose the enhancement. With a skilled defense attorney, you can argue against this and avoid the additional penalties.

The Gang Sentence Enhancement and Interest of Justice

A judge can remove a gang enhancement if it is unfair or unjust. This situation is uncommon and usually happens only under special circumstances. However, you might be eligible for such a removal to ensure fairness.

Illegal Imposition of Gang Enhancements

California’s gang laws are complicated. Sometimes, even a well-intentioned prosecutor might misunderstand these laws and apply incorrect or illegal charges. Your attorney should carefully review all aspects of your case to ensure that you have not been unfairly or wrongly charged. If your defense attorney finds that the prosecution has applied the gang enhancement incorrectly, they will work to have it removed.

Contact an LA Criminal Defense Law Firm Near Me

If you have been accused of a gang-related crime in California, you can face serious consequences under the law. This means you could receive severe penalties. If you are charged with a gang-related offense, consulting with a lawyer specialising in these cases is important. An experienced gang crime defense attorney can help you understand the law and guide you on what actions to take.

At Monterey Criminal Attorney, our attorneys have extensive experience helping clients with gang affiliation charges. Do not risk your life by staying silent or accepting the charges without proper help. Contact us at 831-574-1791 for a free consultation and case review. We are here to support you.