As a former Gang Prosecutor, Jim McGee knows the investigative techniques, legal requirements, and testimonial practices of law enforcement in gang cases. If you are ever charged with a gang-related crime, you are facing very serious charges that will impact you for the rest of your life. It serves your best interests to retain an attorney experienced in the nuances of how the law allows – and limits – the government to prosecute and punish gang activity.
Below is a detailed explanation of what individuals charged with a gang allegation will be facing.
DEFINITION OF A CRIMINAL STREET GANG
In 1988, the California Legislature enacted the Street Terrorism Enforcement and Prevention (“STEP”) Act in an effort to confront the criminal street gang problem in the state. Under the STEP Act, the definition of “criminal street gang” to be used in its various provisions, including the Substantive Offense (Penal Code section 186.22(a)) and the Gang Enhancement (Penal Code section 186.22(b)) is as follows:
- A group of three or more people;
- Having a primary activity of commission of one or more of the predicate crimes listed in Penal Code section 186.22(e), paragraphs (1)-(25) & (31)-(33);
- “Having a common name or common identifying sign or symbol”;
- Whose members engage in a pattern of criminal gang activity.
The prosecution must establish that the group has “a primary activity of commission of one or more of the predicate crimes listed in paragraphs (1)-(25) and (31)-(33) of subdivision (e).” Penal Code section 186.22(f).
- A chief or principal occupation: “Primary activity” means “the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations.” People v. Sengpadychith (2001) 26 Cal.4th 316, 323.
- Consistent and repeated commission sufficient: Proof that a “group’s members consistently and repeatedly have committed criminal activity listed in the gang statute” is sufficient to establish the gang’s primary activity.
- Occasional commission insufficient: The occasional commission of crimes by the gang’s members, however, is insufficient.
- Past and current offenses considered: The trier of fact may consider past offenses and the charged offenses in determining whether the primary activity element is satisfied.
COMMON NAME, SIGN, OR SYMBOL
- Multiple Names: “The association of multiple names with a gang satisfies the statute’s requirement so long as at least one name is common to the gang’s members.” Where gang was known by two names and “there was graffiti which signified the gang, though no particular color or clothing was associated with gang membership.” In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1001.
- Sub-Group Cases: “The prosecution must demonstrate that the crime was committed by a single “criminal street gang.” If more than one subset is involved, the prosecution must demonstrate evidence of collaboration or organization, or the sharing of material information among the subsets, or the subsets are part of a hierarchy organization, or members exhibit behavior showing self-identification with larger group. It is not enough that the group shares a common name, identifying symbols, and a common enemy.” People v. Prunty (2015) 62 Cal.4th 59
PATTERN OF CRIMINAL ACTIVITY
Penal Code section 186.22(e) provides that a pattern is established by the commission of certain predicate offenses by members of the gang:
- “the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more” offenses listed in paragraphs (1)-(33) of subdivision (e);
- “at least one of these offenses occurred after the effective date of this chapter”, i.e. after September 26, 1988;
- “the last of those offenses occurred within three years after a prior offense”; and
- “the offenses were committed on separate occasions, or by two or more persons.”
Penal Code section 186.22(j) adds that the pattern cannot be established solely by proof of offenses listed in (e)(26)-(30); those offenses can only serve as a predicate for the pattern when coupled with an offense in the (e)(1)-(25), (31)-(33) ranges.
- The predicate offenses need not be gang related, but must have been committed by gang members. People v. Gardeley (1996) 14 Cal.4th 605.
- The two or more predicate offenses establishing the pattern can be shown by:
- two prior offenses;
- one prior offense + the current offense; or
- the current charged offense committed by the defendant and the contemporaneous commission of a second predicate offense by a fellow gang member.
- An offense committed by defendant on a separate occasion can be a predicate offense for participation in a criminal street gang. People v. Tran (2011) 51 Cal.4th 1040, 1044.
- Two predicate offenses are not established by D’s assault on victim combined with fellow gang member’s contemporaneous aiding and abetting of that same assault. People v. Zermeno (1999) 21 Cal.4th 927, 931.
- An offense occurring after the date of the charged offense does not constitute a predicate offense. People v. Godinez (1993) 17 Cal.App.4th 1363, 1370, disapproved on other grounds in People v. Russo (2001) 25 Cal.4th 1124, 1134.
SUBSTANTIVE GANG CRIMES
Penal Code section 186.22(a)
Penal Code section 186.22(a) defines a stand-alone substantive crime which penalizes committing or aiding and abetting a felony while being an active participant in a gang:
(a) Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.
The active-participation offense has essentially three elements, although each of those elements, in turn, can be broken down into additional elements. The three elements are:
- Active participation in a criminal street gang;
- When the defendant participated in the gang, he/she knew that members of the gang engage in, or have engaged in, a pattern of criminal gang activity;
- The defendant willfully assisted, furthered, or promoted a felony by members of the gang by:
- directly and actively committing a felony; or
- aiding and abetting a felony.
The parameters of “active participation” are established by both case law and statute:
- More than nominal or passive participation required. “Active participation” means “taking part in” something “in a manner that is not passive.” It is involvement that is “more than nominal or passive.” People v. Castenada (2000) 23 Cal.4th 743, 747. Must have knowledge of the gang’s pattern of criminal activity. In re Jose P. (2003) 106 Cal.App.4th 458.
- Leadership role not required. The prosecution need not show that the defendant held a leadership role in the gang. Castenada, 23 Cal.4th at 750.
- Devotion of all or substantial part of time or efforts to gang not required: “[I]t is not necessary for the prosecution to prove that the person devotes all, or a substantial part, of his or her time or efforts to the criminal street gang.” Penal Code § 186.22(i).
- Gang membership not required: “[N]or is it necessary to prove that the person is a member of the criminal street gang.” Penal Code § 186.22(i).
- Participation must be at or near time of crime. “It is not enough that a defendant have actively participated in a criminal street gang at any point in time, however. A defendant’s active participation must be shown at or reasonably near the time of the crime.” People v. Garcia (2007) 153 Cal.App.4th 1499, 1509.
FELONIOUS CRIMINAL CONDUCT
The defendant must assist, further, or promote “felonious criminal conduct.” This element is a stand-alone element, which is not part of the definitions of a criminal street gang.
- Any felony. The felony need not be one of the predicate offenses listed in subdivision (e). People v. Salcido (2007) 149 Cal.App.4th 356, 368-369.
- The felonious criminal conduct need not be “gang-related.” People v. Albillar (2010) 51 Cal.4th 47, 55-59; see also People v. Gonzalez (2011) 199 Cal.App.4th 219, 229 [following Albillar].
- Aider & Abettor or Direct Perpetrator Aided By Gang Members. “[A] person who violates section 186.22(a) has also aided and abetted a separate felony offense committed by gang members.” People v. Castenada (2000) 23 Cal.4th 743, 749-750. The felonious criminal conduct element is not satisfied by a gang member acting alone. People v. Rodriguez (2012) 55 Cal.4th 1125.
- Firearm Violations Constituting Felonious Criminal Conduct. Certain normally-misdemeanor firearm offenses are elevated to felonies when the defendant is an active participant in a criminal street gang, within the meaning of Penal Code section 186.22(a). Penal Code § 12025(b)(3) [carrying a concealed weapon]; Penal Code § 25850(c)(3) [carrying a loaded firearm in public]. To establish that these firearm offenses are felonies, the prosecution must satisfy all of the elements of section 186.22(a). People v. Robles (2000) 23 Cal.4th 1106, 1115.
Penal Code section 186.22(b)
Penal Code section 186.22(b) defines, not a stand-alone offense like 186.22(a), but a sentencing enhancement which applies where the defendant committed the felony “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.”
To prove this allegation, the People must prove that:
- The defendant committed the crime for the benefit of, at the direction of, or in association with a criminal street gang; and
- The defendant intended to assist, further, or promote criminal conduct by gang members.
This enhancement applies even in the absence of active or current participation in a gang. In re Ramon T. (1997) 57 Cal.App.4th 201, 207.
Gang membership not required. People v. Bragg (2008) 161 Cal.App.4th 1385.
In People v. Albillar (2010) 51 Cal.4th 47, the California Supreme Court elaborated in detail on the meaning of the two elements of the enhancement – the “for the benefit of …” element and the “specific intent” element:
FOR THE BENEFIT OF, AT THE DIRECTION OF, OR IN ASSOCIATION WITH
- Offense Must be Gang-Related: Not All Offenses by Gang Members are Gang-Related. The gang enhancements only apply if the offense is “gang related,” but not all offenses by gang members are gang-related. “‘[I]t is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang.'”
- The Court found the offenses gang-related because they were committed in association with gang members and for the benefit of a gang.
- Sexual assaults committed by two brothers and a cousin in their home were committed in association with their gang where they “not only actively assisted each other in committing these crimes, but their common gang membership ensured that they could rely on each other’s cooperation in committing these crimes and that they would benefit from committing them together. They relied on the gang’s internal code to ensure that none of them would cooperate with the police and on the gang’s reputation to ensure that the victim did not contact the police.”
- “Expert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was ‘committed for the benefit of … a criminal street gang’ within the meaning of section 186.22(b)(1).”
SPECIFIC INTENT TO PROMOTE, FURTHER, OR ASSIST IN ANY CRIMINAL CONDUCT
- The intent can relate to “any criminal conduct,” even the conduct underlying the charged offense. In Albillar, the Court held that “the scienter requirement in section 186.22(b)(1)—i.e., ‘the specific intent to promote, further, or assist in any criminal conduct by gang members’—is unambiguous and applies to any criminal conduct, without a further requirement that the conduct be ‘apart from’ the criminal conduct underlying the offense of conviction sought to be enhanced.”
- The intent need only relate to promoting, etc. criminal conduct by gang members; prosecutor need not show intent to promote “a gang.” “There is no further requirement that the defendant act with the specific intent to promote, further, or assist a gang; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members.” The constitutional requirement of personal guilt does not compel a requirement of specific intent to aid the gang.
- Albillar’s broadly-worded conclusion: “if substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members.” In Albillar, the specific intent element was thus satisfied by evidence that (1) the defendants intended to attack the victim; (2) they assisted each other in raping her; and (3) each perpetrator was the member of a criminal street gang.
Penal Code section 12022.53(e)
In California, the law imposes harsh penalties on gun charges involving gang members. These punishments are called sentence enhancements. A sentence enhancement under Penal Code section 12022.53(b), (c), or (d), for using or discharging a firearm in the commission of certain felonies may be imposed against a defendant if the jury finds that:
- The defendant committed a specified felony for the benefit of a criminal street gang in violation of Penal Code section 186.22(b), and
- Any principal used or discharged a firearm in the commission of the felony.
This provision imposes vicarious liability under Penal Code section 12022.53 on a defendant in a gang case who does not personally use the weapon. Although the defendant must first be convicted of the underlying offense before the enhancement may apply, the prosecution need not prove the conviction of the principal who discharged the firearm.
See the Firearm Charges & Enhancements page for further details.
- Enhancing Determinate Terms : When the underlying felony is penalized by a determinate term – that is a set term in years – then the length of the enhancement is determined as follows:
- Basic felony: additional term of 2, 3 or 4 years consecutive to the felony.
- Serious felony: additional term of 5 years.
- Violent felony: additional term of 10 years.
- When the underlying crime is one of the crimes listed below, the penalty is an indeterminate term in state prison with a minimum term consisting of the greater of either:
- The usual term for that offence plus any enhancement; or
- 15 years if the felony is home invasion robbery, carjacking, discharge of a firearm at an inhabited dwelling house (and other targets), or drive-by shooting resulting in GBI or death;
- 7 years if the felony is extortion (PC § 519) or threats to victims and witness (PC § 136.1)
- Enhancing Indeterminate Terms : when the underlying felony is penalized by an indeterminate term, then the defendant must serve a minimum of 15 years prior to parole eligibility.
- This is so even when the underlying felony already has a minimum parole eligibility term longer than the 15 years provided for in (b)(5), such that the gang enhancement has no practical effect.
Felony Enhanced Under Subdivision (b) is a Serious Felony. The statutory list of serious felonies includes “any felony offense, which would also constitute a felony violation of Section 186.22.” Penal Code section 1192.7(c)(28).