The Facts About Gang Enhancements
In California, it’s possible for two people to be convicted of the same crime yet receive profoundly different custodial sentences.
The reason for such disparities is a legal concept called “enhancement.” If you’re accused of a crime that meets certain conditions — or you are judged to be part of a specific group — you may be eligible for enhanced sanctions under state law.
One of the most prominent examples of this concept is California’s gang enhancement sentencing law: Penal Code 186.22 PC. This code is part of the larger California Street Terrorism Enforcement and Prevention Act (or STEP Act).
Penal Code 186.22 PC has two sections. The first makes it a crime to join a street gang and participate in any associated criminal activity. Those who are found guilty of gang participation can be sentenced to up to a year in county jail or three years in state prison.
The second part of Penal Code 188.22 PC allows judges to hand down enhanced sentences for defendants deemed to have committed a felony for the benefit of a gang. This enhancement takes the form of an entirely separate sentence that runs consecutively with the initial penalty. This enhanced penalty can range anywhere from two years to 25-to-life, depending on the severity of the purported offense.
In other words, alleged gang members in California are often punished much more severely than those without gang affiliations, sometimes serving a longer sentence — or even two sentences rather than one.
It should be noted that this penal code applies not only to confirmed gang members, but also to those who may only be loosely tied to the group. For example, a gang member may receive an additional 12 months to a sentence as a result of his gang status. Yet that same gang member’s wife or girlfriend may also be charged and convicted under the STEP Act if she is determined to have provided any support, or acted in any way that provided a benefit to the gang.
Issues with Gang Enhancement Prosecutions
Gang sentencing enhancement is a powerful tool in the prosecutorial toolbox — and some prosecutors may be overzealous in its application. Gang enhancements may be sought in cases where the defendant isn’t truly a gang member or did not commit the accused felony, or in cases where someone tangentially related to the crime wasn’t truly acting for the benefit of the gang in question.
An experienced defense attorney can help raise these defenses and prevent enhancements from occurring in cases where they should not apply.
For example, Penal Code 186.22 PC requires three elements to convict a defendant of street gang membership:
- The defendant must have actively participated in a criminal street gang
- The defendant must be aware that gang members are engaging in a pattern of criminal activity
- The defendant must “willfully assist, further or promote) felony conduct by the gang
- In the absence of proof of all of three elements, a defendant cannot be convicted of street gang membership under the STEP Act. Additionally, the law sets out elements that must exist in order to qualify for an enhanced sentence. These elements are:
- The defendant committed (or tried to commit) a crime for the benefit of a street gang, at the direction of that gang or in association with that gang.
- When the defendant committed this crime, there was an intention to assist, further or promote the gang’s criminal conduct.
- Without these elements in place, a defendant does not qualify for enhanced sentencing under the STEP Act.
Sentencing enhancements also depend on the severity of the crime. Violent felonies, for example, may result in an additional 10-year (or longer) sentence to be served after the sentence for the initial crime.
Defense attorneys may seek to reduce or remove gang enhancements by arguing that it “serves the interest of justice” to do so.
Finally, gang enhancements may be pursued in concert with additional sentencing enhancements (such as using a gun to commit certain felonies). Because multiple enhancements can become quite complex, it’s important to consult with an experienced criminal defense attorney in such cases.
Finding the Right Los Angeles Defense Attorney
Gang enhancements are serious business — they can double or even triple the length of a defendant’s sentence, in some cases. This is why it’s vitally important that you speak with an experienced California criminal defense attorney with specific experience in enhancements.
Contact us today to learn more about how an experienced defense team can vigorously protect your rights.
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