Penal Code 186.22 PC is an important part of the California STEP Act (Street Terrorism Enforcement and Prevention Act). It also serves as a guideline for the state’s street gang enhancement law.
Subsection (a) of Penal Code 186.22 PC presents the legal definition of “participation in a gang”, which is a crime in California:
● A person must actively participate in a gang
● They must know that the gang engages in criminal gang activity
● They must willfully assist, further, or promote felonious conduct by the gang’s members.
California law defines a “criminal street gang” as three or more people with a common name or identifier (i.e. a sign or symbol) who commit certain criminal offenses as one of their primary activities. Examples include robbery, drive-by shooting, and murder.
Participation in a gang is a wobbler, so it can be prosecuted as a misdemeanor or a felony. The maximum sentence for a misdemeanor is one year in the county jail and possibly a fine of up to $1,000. A felony conviction can result in 16 months, 2 years, or 3 years in prison and a fine of up to $10,000.
Penal Code 186.22(b) PC, which is the gang sentencing enhancement, provides that a person who commits a felony as a gang member will receive an automatic prison sentence in addition and consecutive to the penalty applied to the felony itself. Depending on the type and circumstances of the offense, a defendant can serve anywhere from an additional two years to life in prison.
In general, anyone convicted of a felony for which the STEP act gang enhancement applies will serve an additional prison term of 2, 3, or 4 years. Serious felonies such as shooting at an inhabited dwelling or occupied car or assault with a deadly weapon against a peace officer can incur longer prison terms. If the felony is a violent one, such as murder or certain sex crimes, the additional prison time is 10 years. Specific felonies such as carjacking and home invasion robberies are punishable by 15 extra years in prison.
There are currently three federal statutes that make it a felony to commit or participate in certain state or federal crimes for the benefit of a criminal “enterprise” such as a gang.
● The Racketeer Influenced and Corrupt Organizations Act ("RICO")
● The Violent Crimes in Aid of Racketeering Act "(VICAR")
● The Continuing Criminal Enterprise statute
The Criminal Street Gangs statute 18 USC 521 can add up to 10 years to the sentence of convicted gang members. Unlike California state law, there is no parole under the federal court system.
Theoretically gang members can be prosecuted under state or federal law, but in practice government prosecutors target larger, organized criminal enterprises.
Assault, assault with a firearm, attempted murder, burglary, carjacking, extortion, false imprisonment, grand theft auto, kidnapping, murder, possession of a controlled substance for sale, transporting or selling a controlled substance
The harsh penalties and equally punitive sentencing enhancements that apply to gang-oriented felony convictions make it important to hire a Los Angeles criminal defense attorney right away. A skilled attorney may succeed in getting the charges reduced to misdemeanors or dropped entirely, depending on the circumstances.
Potentially defenses against a gang crime charge include lack of evidence that the person committed the underlying felony and proof that they were not an active participant in a gang or acting for the benefit of a gang.
In July 2014 50 members of the Five Deuce Broadway Gangster Crips which had been terrorizing the South Broadway corridor for years, were arrested and taken into custody. In total 72 defendants were named in a racketeering indictment that accused gang members of a variety of crimes. Most of the gang’s income came from selling drugs in derelict areas, but the indictment alleged sales as far east as Minnesota.
If convicted, all of the defendants face automatic minimum sentences of 10 years in federal prison. Many are potentially facing life sentences.