Penal Code 186.22 PC – California “Gang Sentencing” Enhancement

The Penal Code 186.22 PC is the California law that makes it a crime to actively participate in a criminal street gang. The law essentially makes gang activity an offense in itself, and also a sentencing enhancement that adds additional prison time for crimes committed in support of a criminal gang.

• The crime of participation in a gang
• The gang sentencing enhancement
• Possible defenses
• The California statute makes it a crime to participate in a street gang
• Definition of “actively participated”
• Definition of a “criminal street gang”
• Gang activity “assisted, furthered or promoted”
• The penalties for the crime of “participation in a gang”
• The sentencing enhancement
• Charged with the crime of “participation in a gang”
• The sentencing enhancement
  • Charged with “generic” felonies
  • Charged with “serious” felonies
  • Charged with “violent” felonies
  • Charged with “specific” felonies
• Misdemeanor
• Additional sentencing considerations
• In the interest of justice striking the gang enhancement
• The multiple sentence enhancement
• Other sentence enhancement
• Personal use of a gun/firearm
• The California “10-20-life” law
• Best defense strategies to use in court
• Comparing California and federal gang laws
• Racketeer influenced and corrupt organizations act (RICO)
• Violent crimes in aid of racketeering act (VICAR)
• Continuing criminal enterprise statute (“CCE” or “Kingpin” statute)
• The sentencing enhancement under “criminal street gang” statute

The Crime of Participation in a Gang

According to this part of the law it is a crime to participate in a street gang and assist in any kind of felony criminal conduct by the gang’s members.

Penalties for participation in a gang, in violation of Penal Code 186.22(a) PC, can include a sentence of up to 1 year in county jail , or a California felony sentence of 16) months, 2 years or 3 years in state prison.

The gang sentencing enhancement

The law provides a clear and concise point that anyone who commits a felony for the benefit of a gang will receive a mandatory prison sentence, in addition and consecutive to the penalty he or she receives for the original felony.

Dependent on the surroundings of the offense, Penal Code 186.22(b) PC could mean an additional 2 to 15 years, or even 25 -to-life, in prison. Even if you’re not a gang member, and even if you aren’t the person who was most directly responsible for committing the original felony.

Therefore, as you can see, California law, through the STEP Act, punishes gang members and those who associate with gang members much more severely than people who have no gang affiliations.

Possible legal defenses to a California Gang Sentencing Enhancement Charge

However, just because the prosecution charges you with a street gang sentencing enhancement doesn’t mean it will stick. An experienced California criminal defense attorney knows this and may be able to help make sure that it doesn’t.

A Possibly helpful legal defenses against a Penal Code 186.22 PC charge include:

• You didn’t commit the original felony;
• You are not an “active member” in a gang;
• You weren’t acting for the profit of a gang;
• The prosecutor is pursuing to apply the gang sentencing enhancement in an illegal way; and/or
• Implementing the gang sentencing enhancement would go against “the interests of justice.”

To be noted is that Los Angeles County prosecutors are no longer enhancing sentences based on gang affiliations.

Below, the California criminal defense attorneys from Spodek Law Group address the following:

• How does California law define “participation in a street gang”?
• Penalties for the crime of “participation in a gang”
• What is the sentencing enhancement under 186.22 PC?
• “Generic” felonies
• “Serious” felonies
• “Violent” felonies
• Specific felonies
• Misdemeanors

Other sentencing considerations:

• How does 186.22 relate to other sentencing enhancements?
• Personal use of a gun
• California’s “10-20-life” law
• What are the best defense strategies to use in court?
• How do California and federal gang laws compare?

The California statute makes it a crime to participate in a criminal street gang

How does California law define “participation in a street gang”?

The Penal Code 186.22(a) PC sets out the legal classification of the California crime of “participation in a gang.’’ Therefore, in order to convict you of the offense of “participation in a street gang” under the STEP Act, a California prosecutor must prove the following three facts (otherwise known as “elements of the crime”):

• That you “actively participated” in a criminal street gang;
• That you knew that the gang’s members engaged in a pattern of criminal gang activity; AND
• Lastly you willfully aided and abetted, or promoted felonious (felony) criminal conduct by gang members.

In order to help you better understand the legal definition of participation in a gang under Penal Code 186.22(a) PC, we will expand on some of these terms.

Definition of “Actively participated”

To note under California’s gang enhancement law, you are considered to have “actively participated” in gang activities if you participated and contributed in those activities in a way that is not simply passive, or in name only. The law declares you can be considered to have been an active participant in a gang even if:

• In principle you didn’t devote all or a substantial part of your time to the gang,
• weren’t a high ranking official or the leader of the gang, and
• regardless of whether or not you weren’t even an active member of the gang.

Definition of a “criminal street gang”

The definition of a “criminal street gang” is defined as any organization or group of 3 or more people that:

• identify with a common name or particular sign or symbol,
• partakes, as one of its primary activities, in the charge of one of a long list of California criminal offenses, and
• has members who have engaged in a “pattern of criminal gang activity”, either alone or together.

Unfortunately, the definition of a “pattern of criminal gang activity” in California’s gang sentencing enhancement law is extremely complicated. Nevertheless, put very simply, it means:

• the charge of 2 or more crimes from a specific list,
• on 2 or more separate occurrences or by 2 or more individuals,
• in a span of 3 years of each other, and
• along with at least one crime committed after September 1988.

Also though it may seem odd, it isn’t required for the prosecution to prove that these offenses were even gang-related. 

There is a list of criminal offenses that can form a “pattern of criminal gang activity”, and as a result that a group is a “criminal street gang”. The list includes such common offenses such as:

• Any kind of robbery
• Multiple drug offenses, including transportation and sale, possession for sale, and manufacturing of drugs
• Drive-by shootings
• Vandalism, but only if it is chargeable as a felony
• Assault with a deadly weapon
• Murder.

Gang activity “assisted, furthered or promoted”

Under California law the prosecutor has to prove that you “assisted, furthered or promoted” felony criminal behaviour by a gang, the prosecutor must prove that you either:

• You directly and actively committed a felony in California law
• That youaided and abetted a felony.

Additionally, in order for you to be convicted of the crime of “participation in a gang” under Penal Code 186.22(a) PC, it must be correct that you committed, or aided and abetted a felony with other gang members.  So if you commit a felony on your own, you cannot be convicted under this section of California’s gang enhancement law.

(On the other hand, even if you acted alone, you may still be subject to the criminal street gang sentencing enhancement under Penal Code 186.22(b) PC)

The penalties for the crime of “participation in a gang”

Under Penal Code 186.22(a) PC the offense of “participation in a gang” called a wobbler in California law, meaning that the prosecutor may choose to try it as either a misdemeanor or a felony.

If you are convicted of Penal Code 186.22(a) PC the maximum sentence you will receive as a misdemeanor is 1 year in county jail. Also you may receive a fine of up to $1,000.

However, if you are convicted of participation in a gang as a felony, you may face 16) months, 2 years, or 3 years in the California State Prison. On top of that, you may also receive a fine of up to $10,000.

The Sentencing Enhancement

The Penal Code 186.22(b) PC sets forth the actual California criminal gang sentencing enhancement.

You should note the way the street gang sentencing enhancement under the STEP Act works is this: if convicted of a California crime, you will receive an enhanced sentence. However, that is dependent on whether the prosecutor can prove all of the “elements” of the sentencing enhancement.

These elements are:

• You committed, or attempted the crime for the advantage of, at the direction of, or in acquaintancewith a criminal street gang
• When you committed the crime, you intended to help, further, or promote criminal conduct by members of the gang.

Essentially, you also must be convicted of the original crime which means the prosecutor must prove all the elements of that crime as well.

An important detail is that there is no condition that you be an “active participant” in a gang at the time when you committed the crime.

The question of how much will the criminal street gang sentencing enhancement increase your sentence for a particular crime will depend on what the original crime is.

Charged with “Generic” felonies

Generally the rule is that if you are convicted of a felony and the STEP Act gang enhancement applies you will receive an added prison term of 2, 3, or 4 years. The term is served in addition and subsequent to the penalty you receive for the original felony (as well as any additional charges). Though, there are many exceptions to this general rule.

Charged with “Serious” felonies

If the original felony to which the Penal Code 186.22(b) enhancement applies is a supposed “serious” felony, the added prison term will be 5 years. There are more than 42 types of California serious felonies. 

 Examples include (but not limited to):

• The Penal Code 246 PC, California’s law against shooting at an inhabited dwelling or occupied car
• Some California drug crimes
• An instance of assault with a deadly weapon by a prison inmate
• Under the Penal Code 245(a)(1 PC assault with a deadly weapon against a peace officer
• Under the Penal Code 245(a)2 PC assault with a firearm against a peace officer or firefighter
• Under the Penal Code 422 PC California’s law against making criminal threats.

Charged with“Violent” felonies

If the original felony to which the Penal Code 186.22(b) enhancement applies is a supposed “violent” felony, committed in connection with a street gang then the added prison term will be 10 years. The list of crimes that count as “violent” felonies in California is also long— and more than 20. Examples include (but not limited to):

• Murder under Penal Code 187 PC murder
• Every felony in which the defendant inflicts great bodily injury upon a victim
• Mayhem underPenal Code 203 and 205 PC, California’s mayhem laws
• Particular California sex crimes

Charged with “Specific” felonies

Under Penal Code 186.22(b) PC which sets out a few detailed felonies that if committed with the intent to assist or promote a gang will lead to an even longer gang sentencing enhancement.

If the underlying felony that you are convicted of is:

• Home invasion robberyunder Penal Code 213 PC 
• Carjacking under Penal Code 215 PC California carjacking
• Felony violation of Penal Code 246 PC, California’s law against shooting at an inhabited dwelling or occupied car
• Under Penal Code 12022.55 PC – discharging a firearm from a motor vehicle (more ordinarily referred to as a “drive-by” shooting that causes death or great bodily injury)

You will face an added 15 years to life in the California state prison.

If you are convicted of either:

• Extortion committed by force or fearunder Penal Code 518 PC extortion
• Witness tampering under Penal Code 136.1 PC dissuading a witness,

You will face 7 years to life in the state prison.

And, as a final point, if your original conviction is for a felony that is punishable by life imprisonment, you will be sentenced to a life term.  In relation to that be the case, you will not earn credit towards your California parole eligibility until you have served a minimum of 15 years.

Misdemeanors

The Penal Code 186.22(d) PC provides another way that criminal gang involvement can increase your sentence for a certain crime. As part of California’s gang enhancement law allows the prosecution to upgrade any misdemeanor crime into a felony if the misdemeanor is committed:

• To the benefit the, at the order of, or in acquaintance with any criminal street gang
• Necessary detailed intent to promote, further, or assist in criminal conduct by gang members

Meaning that instead of the normal maximum misdemeanor sentence of 1 year in county jail you may face 1, 2 or 3 years in state prison.

Additional sentencing considerations

Offense took place in a school zone:

Additionally, to the gang sentencing enhancement calculations described above, under the STEP Act, judges will also look at whether the underlying offense took place

• If it happened in a “school zone” (that is, on the campus of or within one  (1,000 feet of a public or private school)
• for the duration of hours when the school was in session or minors were on the grounds

Note that if the offense did take place in a school zone that will be an “aggravating circumstance” that the judge may take into consideration when determining the length of your sentence. Basically, that factor could lead to you receiving a sentence on the higher end of the range.

In the interest of justice: Striking the Gang Enhancement 

According to Penal Code 186.22 PC, California judges may at their discretion strike the gang enhancement altogether. If an experienced California criminal defense lawyer can sway the judge that it is “in the interests of justice” to do so. Arguably, this is supposed to happen only in rarecasesbut with the help of a good lawyer, you may be able to persuade the judge that yours is just such an uncommon case.

The Multiple gang enhancements

In general, California law only permits an individual to suffer one sentencing enhancement for a single criminal act even if that criminal act results in multiple charges.

Though, if a defendant commits several criminal acts that:

• include multiple victims
• and are separated by time and distance

This being the case he or she may face criminal charges for both acts, and the criminal street gang sentencing enhancement may apply to both.

Other sentencing enhancements

It should be noted that there are two other common California sentencing enhancements that may be charged in association with, or instead of the California criminal street gang sentencing enhancement. These are:

• The California’s enhancement for personal use of a gun
• And California’s “10-20-life” law.

Best defense strategies to use in court

The most experienced and highly skilled California criminal defense lawyer can use a number of common legal defenses to challenge STEP Act charges, either gang participation charges under Penal Code 186.22(a) PC, or the gang sentencing enhancement under Penal Code 186.22(b) PC.

The legal defenses includes (but not limited to):

Fighting the original felony charges

If you are not convicted of an original felony, you can’t receive a criminal street gang sentencing enhancement under the Penal Code 186.22(b) PC.  Most cases, prosecutors may not have adequate evidence to prove every element of the felony of which you are accused.

Substantiating that you are not an “active participant” in a gang

 To be charged with “participation in a gang” under Penal Code 186.22(a) PC, means that you cannot be convicted unless the prosecutor can prove that you are an “active participant” in the gang.

Predominantly if you are not actually a full member of a gang, this can be a problematic allegation to substantiate. An experienced criminal defense lawyer can help find the holes in the prosecutor’s evidence that you actively participated in a criminal street gang.

You weren’t performing “for the benefit of a gang”

In the same way, you can’t receive the STEP Act sentencing enhancement under Penal Code 186.22(b) PC if the prosecutor cannot substantiate that you acted for the benefit of a gang when you committed this specific felony. This is right even if you are an active member of the gang.

The prosecutor is trying to impose the gang sentencing enhancement illegally

Important to note that California’s gang laws, firearms law, and sentencing laws are very tricky and complex.  Every so often even a well-meaning prosecutor may not fully comprehend the relevant laws and may file wrong or unlawful charges against you.

If prosecutors are charging you with violating California’s gang laws, it is critical that your criminal defense lawyer methodically analyses each and every aspect of the charge to ensure that you are not being charged unlawfully or unethically.

Imposing the gang sentence enhancement would be against the “interests of justice”

If a jury decides to enforce the criminal street gang sentencing enhancement under Penal Code 186.22(b) PC, remember that the judge has the decision to strike the sentencing enhancement in special cases if the “interests of justice” demand it.

Although, this happens only in rare cases, an increasing number of legal scholars and observers identify that California’s criminal gang sentencing enhancement laws are unnecessarily severeand for the most part “unjust and ineffective” (as one scholarly article puts it).

In cases like these, information about your job history, family contributions and obligations, and character might help persuade the judge to exercise that discretion instead of sentencing you under the STEP Act.

ComparingCalifornia and federal gang laws 

Take into consideration that there are three federal statutes that make it a felony to commit or participate in serious federal, or statecrimes in order to further the interests of a criminal “enterprise” (which can include a gang), or to get into, or further your position in, a gang.

They are:

• The Racketeer Influenced and Corrupt Organizations Act (“RICO”) 18 USC 1961-68;
• The Violent Crimes in Aid of Racketeering Act “(VICAR”) 18 USC 1959; and
• The Continuing Criminal Enterprise statute 21 USC 848.

This being the case the government often has a choice of whether to prosecute gang members under federal or state law.

Generally speaking, federal laws are only used to disrupt and destroy large, highly organized gangs that deal drugs or commit crimes of violence over a wide geographical area, or when local law enforcement officials do not have the resources to investigate and prosecute cases in which the federal government has a substantial interest.

The interstate commerce condition is easily met — selling drugs that come from another country or using guns manufactured in another state is usually enough.

In addition there is also a penalty enhancement statute — the Criminal Street Gangs statute 18 USC 521 — that can in particular circumstances add up to 10 years to the sentence of gang members convicted of any serious crime in federal court.

You will serve your full sentence if you are convicted of gang-related crime in federal court

Therefore, the government may use the threat of federal prosecution in order to try to get you to plead guilty to crimes under California law. 

Racketeer Influenced and Corrupt Organizations Act (“RICO”)

Consequently Under RICO, you can be punished if within a 10-year period you commit, or conspire to commit, two or more related crimes (“predicate acts”) from a list of 36 stated state and/or federal crimes, in continuance of the activities of a criminal “enterprise” (which can include a street gang).

Predicate acts under RICO include (but not limited to):

• murder
• kidnapping
• gambling
• arson
• robbery
• bribery
• obstruction of justice
• obstruction of criminal investigations
• extortion
• drug trafficking

Consequences for RICO violations can include a prison sentence of up to 20 years or, in some cases, life imprisonment, as well as penalty of profits from your illegal activities and a fine of up to $250,000.

Violent Crimes in Aid of Racketeering Act “(VICAR”)

Subsequently VICAR punishes those who commit a violent crime in order to be admitted into, or to bolster their position in, a criminal enterprise.

The predicate crimes under VICAR are:

• murder
• kidnapping
• maiming
• assault with a dangerous weapon
• assault resulting in serious bodily injury
• threatening to commit a crime of violence against any individual in violation of any state or federal law

Consequences under VICAR can include prison sentences of up to 30 years (or for murder, life imprisonment or the death penalty), and fines of up to $250,000.

Continuing Criminal Enterprise statute (“CCE” or “Kingpin statute”) 

In the Continuing Criminal Enterprise statute it makes it a crime to be a leader of a drug enterprise or to kill someone while engaging in, or avoiding arrest for, certain drug-related offenses.

Differentfrom RICO and VICAR, which target a wide range of criminal enterprises, CCE covers only major narcotics organizations.

Punishments under CCE include prison sentences of not less than 20 years (or for murder or ordering a murder, life imprisonment or the death penalty), as well as penalty of profits and fines of up to $4,000,000 for individuals and $10,000,000 for organizations.

Oddly enough there is no double jeopardy prohibition to punishment for violations of RICO, VICAR and/or CCE and for original crimes. This is because RICO, VICAR and CCE penalties are in addition to each other, as well as in addition to sentences and penalty enhancements for original crimes under applicable federal or state law.

The sentencing enhancements under “Criminal Street Gangs” statute

Surprisingly, the definition of a gang is quite limited under 18 USC 521. The gang must have at least 5 members and one its most important purposes must be to commit serious drug felonies or crimes of violence under federal law.

 Under the law a prosecutor must prove that you committed the crimes in support of a gang’s criminal activities, or to maintain your position within a gang. By this definition, the Federal law also provides a penalty enhancement of up to 10 years for crimes committed by gang members who have been convicted within the last 5 years of a serious state or federal crime.