The general law applicable to gang crimes in the state is the California Street Terrorism Enforcement and Prevention Act. Particularly, Sec 186.22 of the California Penal Code criminalizes gang membership and association with gangs on top of the crimes that have been committed.
This law operates by way of individuals that commit felony for the benefit of a gang would receive a mandatory prison sentence in addition to and consecutive to the penalties imposed for the committed felony. Depending upon the felony, the street gang enhancement provision can increase the incarceration of an individual committing a crime.
There are two aspects to the commission of this crime. The first part is involved with the crime of engaging in gang activity while the second part involves in sentencing enhancements to the committed felony.
1. For the crime of “active and knowing participation in a criminal street gang”, the following elements need to be proven:
• The individual actively participated in a gang;
• The gang’s members engaged in a pattern of criminal activity;
• The individual willfully promoted, furthered or assisted in the conduct of felonious activity of the gang.
For this crime, the charges can either be a misdemeanor or a felony. For a misdemeanor, the penalty imposable would be one year imprisonment in a county prison facility. For a felony, the maximum imposable penalty would be three years in a state prison facility.
The third element of the crime is considered as fulfilled when the accused directly and actively commits a felony offense where the said act was aided and abetted by fellow members of the gang. A gang is defined as a group of individuals with a common name with an identifying sign or symbol and whose membership has been engaged in a pattern of criminal activity.
2. Sentence Enhancement for Criminal Gang Activity. As stipulated in the law, there is no requisite that an individual be an active participant in a gang. The increase in the penalty is adduced for any individual who is convicted of a felony offense under the following circumstances:
• The said felonious act was for the benefit of the gang;
• The said felonious act was under the control and direction of a gang;
• The said act was in association with a criminal street gang;
• The said act was done with the specific intent to promote, further or assist in any criminal conduct by gang members.
Other sentencing enhancements include the commission of the felony in a “school zone” and are considered as an aggravating circumstances.
The imposition of sentencing enhancements due to membership in a street gang is a serious matter in California. Should you be or know anyone facing any of these charges, do reach out to the lawyers at the Law Offices of Ramiro J. Lluis for a free consultation today.