RIVERSIDE AND SAN BERNARDINO COUNTY GANG DEFENSE ATTORNEY
Gang enhancement laws in California allow judges to impose longer and stricter sentences for crimes committed by gang members. Gang enhancement to sentences is contained in the California Street Terrorism Enforcement and Prevention Act of the California Penal Code, Section 186.22.
What is California gang enhancement?
As the term suggests, a gang enhancement allows a judge to add additional, consecutive time to the maximum penalty for crimes if it is found that the defendant committed the crime as a result of his or her membership in a gang. While the California Street Terrorism Enforcement and Prevention Act makes it a crime just to be an active member of a criminal gang, a gang enhancement requires an underlying felony conviction. If convicted of an underlying felony, the prosecutor will request or the judge will add more time to a sentence if a gang enhancement can be proven.
What are the particular gang enhancements?
If a defendant is convicted of a felony perpetrated in association with, for the benefit of, or under the direction of a criminal gang, with the specific intent to advance the interests of the gang in its criminal ventures, a judge may add a gang enhancement to the sentence. According to California gang enhancement rules a judge may add:
An additional two, three, or four years at the judge’s discretion upon conviction of a felony
An additional 5 years if conviction is for a serious felony
An additional 10 years if conviction is for a violent felony
An additional 15 years if the felony involves a “home-invasion robbery, carjacking, shooting into an inhabited dwelling or shooting from a motor vehicle,”
Potential life sentence if the defendant is convicted of a murder that occurred during a drive-by shooting, carjacking, or home invasion.
Life sentence if the conviction carries a potential life imprisonment
Any additional time, at the judge’s discretion, if the felony occurred within 1,000 feet of a school when the school is open
Serious felonies include, but are not limited to certain drug crimes, assaulting a peace officer with a deadly weapon or firearm, shooting at an occupied dwelling or car, making certain criminal threats, and assault with a deadly weapon by an inmate.
Violent felonies include, but are not limited to certain sex crimes, extortion, any felony that inflicts great bodily injury, and threatening witnesses. Many offenses are both serious and violent felonies. In this case, the longer sentence will apply.
Additionally, Section 186.22(d) allows prosecutors to turn any misdemeanor into a felony if the misdemeanor was perpetrated in furtherance of, for the benefit of, or at the direction of a criminal gang.
What defenses can I assert to avoid a gang enhancement?
Being charged with a gang enhancement does not mean that it will ultimately be applied to your sentence. With the help of a qualified criminal defense attorney, you should be able to assert several defenses to avoid a gang enhancement to your sentence.
Challenge the underlying felony
If there is no underlying felony, there can be no gang enhancement. The specific defenses will depend on the felony charged.
Challenge the legality of the enhancement
It is important that your criminal defense attorney make sure that the gang enhancement is available and legal for the particular felony convictions. Gang enhancement is a complicated issue, and many prosecutors make mistakes when requesting a gang enhancement. It is always important to make sure that the gang enhancement applies to the particular felony.
Prove that you are not an “active participant” in a gang
Gang enhancements cannot be added to a sentence unless the defendant is proven to be an active participant in a gang. An experienced criminal defense attorney will help you prove that you are not an active participant of a gang, and therefore, gang enhancements cannot be applied to your sentence. Even though tattoos and other markings may make the argument difficult, an attorney can help to argue that you are no longer part of a gang and no longer an active member.
Prove that you were not acting “for the benefit” of a gang
Similarly, a defendant cannot be given a gang enhancement on a conviction if the underlying felony had nothing to do with the gang. A defendant can argue that they committed the felony solely for personal benefit to try to avoid a gang enhancement.
Argue that the sentence goes against the interests of justice
As a last resort, a defendant can always appeal to the judge to use his or her discretion to strike the allegation or reduce a sentence. A judge can use their discretion if it is in the interests of justice. A defendant’s family obligations, job history, and ties to the community may sway a judge in their favor.