How to Win Against Gang-Related Charges
When a person accused of a crime has even a minimal connection to a street gang in California, the legal landscape becomes a virtual minefield. A defendant may be charged with crimes additional to and face sentences different from those of a person not related to a gang. Understanding California’s gang-related laws is essential to a successful defense. One of California’s top gang-related crimes defense attorneys, Aaron Spolin, explains how to win a case: “We use three strategies: (1) file legal motions to get a case dismissed and evidence excluded; (2) use all available evidence to support the case; and (3) present strong defenses to the jury. These strategies have been used many times with Mr. Spolin’s former clients to achieve a successful outcome. (Every case is unique, and prior success is not a “guarantee” of the same outcome on a future case.)
Mr. Spolin explains how his strategies work:
- File Legal “Motions” to Dismiss the Case or Exclude Evidence: A legal “motion” is a request to the court. Spolin Law P.C. uses motions to get a case dismissed or evidence excluded (or suppressed) based on the facts of the case and solid legal arguments.
- Use Evidence to Support the Case: Your attorney will listen to your story, collect evidence, and obtain evidence from the prosecutor, all of which will be used to support your case. The information gathered will be used to support motions and defenses as well as challenge the prosecution’s claims.
- Present Strong Defenses to the Jury: In gang-related cases, it is effective to scrutinize the prosecution’s allegations that the defendant was a gang member and that the crime was allegedly committed to benefit a gang. Spolin Law P.C. will develop defenses to these claims and work to prove to the jury that you are not guilty.
To learn how these strategies might be used in your case, contact Mr. Spolin and his legal team at Spolin Law P.C. at (310) 424-5816.
- How to Win Against Gang-Related Charges
- California Street Terrorism Enforcement and Prevention Act (“STEP” Act)
- PC 186.22(a) — Participation in a Criminal Street Gang
- Other Related Gang Offenses
- Learn About Top Gang Crimes Defense Lawyers
California Street Terrorism Enforcement and Prevention Act (“STEP” Act)
The California Street Terrorism Enforcement and Prevention Act, known as the STEP Act, passed in 1988. It created the new crime of participating in a street gang and changed the sentencing applicable to gang-related crimes. Californians passed the law in response to increased gang violence and crimes that were gang-related. In the preface to the STEP Act, the Legislature stated that “California is in a state of crisis” caused by violent street-gang members who commit crimes against the peaceful citizens of their neighborhoods. The Legislature also found that such crimes “present a clear and present danger to public order and safety.”
Balanced against the need for curbing street-gang violence is the Constitutionally protected right of association. The Legislature recognized “the constitutional right of every citizen to harbor and express beliefs on any lawful subject whatsoever, [and] to lawfully associate with others who share similar beliefs.” The Legislature then proceeded to define what it means to lawfully associate with others; or, rather, to define what it means to unlawfully associate with others.
If you have been charged with a gang-related crime, you need an attorney who is familiar with the STEP act. Call Spolin Law P.C. with any questions at (310) 424-5816.
- How to Win Against Gang-Related Charges
- California Street Terrorism Enforcement and Prevention Act (“STEP” Act)
- PC 186.22(a) — Participation in a Criminal Street Gang
- Other Related Gang Offenses
- Learn About Top Gang Crimes Defense Lawyers
PC 186.22(a) — Participation in a Criminal Street Gang
PC 186.22(a) makes it a crime to participate in a criminal street gang. Note that membership in the gang is not criminal, nor is membership required to violate the act; the crime is participating in a criminal street gang.
To prove the crime of participating in a street gang, the prosecutor must show the following:
- The defendant actively participated in a criminal street gang
- The defendant had knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and
- The defendant willfully promoted, furthered, or assisted any felonious criminal conduct by members or a member of that gang, either by directly participating in the felony or aiding and abetting the felony.
What Constitutes “Active Participation” in a Gang?
While active participation is not specifically defined by the statute, the law is clear that active participation does not require that a person devote all or even a substantial part of their time and efforts to the gang. The only requirement is that the participation be more than “nominal” or passive. The participation must also have been at or near the time of the felonious criminal conduct of the gang or gang member.
Participation in street gang activity can be shown by a person’s affiliation with gang members, such as being in the company of gang members; having a gang tattoo; admitting to being in a gang; having been in a gang in the past; or having committed gang-related crimes in the past. While the focus of the offense of participating in a street gang is supposed to be on a person’s objective to promote, further, or assist the gang’s commission of felonies, active participation has been established from merely belonging to a gang.
What Is a Criminal Street Gang?
Central to the provisions of PC 186.22(a) is the existence of a criminal street gang. To violate PC 186.22(a), a person must participate in (but need not be a member of) such a gang, which is any ongoing organization, association, or group of three or more persons, whether formal or informal:
- That has a common name or common identifying sign, symbol, or moniker (including graffiti signs);
- That has as one or more of its primary activities the commission of crimes listed under PC 186.22(e)(1)–(25), (31)–(33) (see NOTE at the end of this section for a list of offenses in PC 186.22(e)); AND
- Whose members, whether acting alone or together, engage in or have engaged in a pattern of criminal gang activity.
A “Gang” Is an Organization, Association, or Group
The existence of an ongoing organization, association, or group may be established by circumstantial evidence of or by expert testimony about the street gang’s size, sociology, psychology, customs, and methods of operations. “Experts” in gang organizations are ordinarily police officers, but they need not be. Meeting with the same people over and over, using the same emblem or symbol, and participating in criminal or non-criminal activities together can establish an organization, association, or group.
Small groups with the same name or subsets of a larger group are not necessarily part of one large gang so that the conduct of one is attributable to the other. There must be collaborative activities, a collective organizational structure, or some other connection between the small groups or between the subgroup and the larger group.
One way to show collaboration is to show that the small groups or the larger group and the subset share information. If the group or subset is part of a loose hierarchical organization that includes the other group or the larger group, they may be considered part of the same group even if the group or subset does not communicate or collaborate with the other group or the larger organization. A single organization may be established if the subgroup self-identifies with the larger group. However, engaging in gang activity for the benefit of only the subset is not enough to establish that a person is a member of a larger gang.
Primary Activity of Committing Crimes
To show that a defendant is or was participating in a criminal street gang, the prosecution must show that one of the primary activities of the group is or was committing, attempting to commit, conspiring to commit, or soliciting the commission of the crimes listed in PC 186.22(e)(1)–(25), (31)–(33) (see NOTE at the end of this section). To qualify as a primary activity, committing the crime or crimes must be one of the group’s chief or principal activities rather than an occasional act committed by one or more persons who happen to be members. To determine whether criminal conduct is a primary activity of a group, the following is relevant:
- Evidence of past and present conduct
- The circumstances of the crimes
- Evidence that the group consistently and repeatedly engages or engaged in crimes
- Whether the crimes were committed within a short time of each other or were committed a long time apart
- Expert testimony, ordinarily provided by police officers
Pattern of Criminal Gang Activity
To be convicted of active participation in a criminal street gang, a defendant must have actual knowledge that the gang engaged in a pattern of criminal gang activity. A pattern of criminal gang activity means commission of, attempted commission of, conspiracy to commit, solicitation of, or conviction of:
At least two of the offenses listed in PC 186.22(e)(1)–(25), (31)–(33) (see NOTE at this section), AND
- The last of the offenses occurred within three years after a prior offense, and
- The offenses were committed by one person on separate occasions or by two or more persons on one occasion
OR
At least one offense listed in PC 186.22(e)(26)–(30) and one offense listed in PC 186.22(e)(1)–(25) or (31)–(33) (see NOTE at the end of this section).
Thus, it takes only two crimes to establish a “pattern” of criminal gang activity. The offenses that establish such a pattern are called “predicate offenses.” Predicate offenses must be felonies, but they need not be gang-related.
A pattern of gang activity cannot be established solely by proof of commission of offenses listed in PC 186.22(e)(26)–(30) (felony theft of an access card or account information; counterfeiting, designing, using, or attempting to use an access card; felony fraudulent use of an access card or account information; unlawful use of personal identifying information to obtain credit, goods, services, or medical information; or wrongfully obtaining documentation from the Department of Motor Vehicles).
A gang member or members need not actually have been convicted of the predicate offenses. The attempted commission of, conspiracy to commit, or solicitation of the offenses listed can show a pattern of criminal activity.
Conviction of the defendant and conviction of an aider and abettor for a single crime establish only one predicate offense.
Not every person involved in the pattern of criminal gang activity need be a member of the criminal street gang at the time the predicate offenses were committed.
Courts and juries can infer knowledge of gang members’ engagement in a pattern of criminal gang activity from the same evidence that shows a defendant’s active participation in the gang.
Thus, it is easy to see how evidence of commission of a single crime can be bootstrapped to prove several of the elements of a participating in a criminal street gang.
The STEP Act was designed to make it easier to prosecute and punish gang-related crimes. The way the terms of the Act are defined indeed make it easier, but it also makes it easier to increase penalties for gang members for crimes that are not even gang-related and to punish those having any connection with a gang.
NOTE: PC 186.22(e) list of crimes:
- Assault with a deadly weapon or by means of force likely to produce great bodily injury
- Robbery
- Unlawful homicide or manslaughter
- The sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture controlled substances
- Shooting at an inhabited dwelling or occupied motor vehicle
- Discharging or permitting the discharge of a firearm from a motor vehicle
- Arson
- The intimidation of witnesses and victims
- Grand theft
- Grand theft of any firearm, vehicle, trailer, or vessel
- Burglary
- Rape
- Looting
- Money laundering
- Kidnapping
- Mayhem
- Aggravated mayhem
- Torture
- Felony extortion
- Felony vandalism
- Carjacking
- Unlawful sale, delivery, or transfer of a firearm
- Unlawful possession of a concealable firearm
- Threats to commit crimes resulting in death or great bodily injury
- Theft and unlawful taking or driving of a vehicle
- Felony theft of an access card or account information
- Counterfeiting, designing, using, or attempting to use an access card
- Felony fraudulent use of an access card or account information
- Unlawful use of personal identifying information to obtain credit, goods, services, or medical information
- Wrongfully obtaining Department of Motor Vehicles documentation
- Prohibited possession of a firearm
- Unlawfully carrying a concealed firearm
- Unlawfully carrying a loaded firearm
The prosecution may try to link any of these crimes to a gang. The CA gang crimes defense lawyers at Spolin Law P.C. know how to fight back against these charges. Call us at (310) 424-5816.
Participating In or Aiding Felonious Conduct
The crime of participating in a criminal street gang requires that a person willfully be a part of committing a felony, either by directly committing the act that constitutes the crime, by “promoting or furthering” the crime, or by aiding or abetting the crime.
If the person is charged with committing an offense that is a misdemeanor but that is, by operation of PC 186.22(a), elevated to a felony, that offense does not satisfy the requirement that the person participates in felonious criminal conduct.
To show that a person aided or abetted a crime for the purposes of the STEP Act requires evidence that:
- A member of a criminal street gang committed the crime,
- The person knew that the gang member intended to commit the crime,
- Before or during commission of the crime, the person intended to aid or abet the crime, AND
- The person’s words or conduct in fact aided the commission of the crime.
According to CALCRIM (Jury Instruction) 1400, a person “aids and abets” a crime if they aids, facilitates, promotes, encourages, or instigates the gang member’s commission of the crime. These terms are not defined by statute and have been read broadly to include conduct that is in any way advances or helps the gang’s conduct. Aiding and abetting a crime does not even require the person to be physically present when the crime is committed, although physical presence may be used to show that the person aided or abetted the crime.
Membership in a gang cannot, by itself, serve as proof of intent or of the facilitation, advice, aid, promotion, encouragement or instigation needed to establish aiding and abetting.
Penalties for Participation in a Criminal Street Gang
The offense of Participation in a Criminal Street Gang may be charged as a misdemeanor or a felony, making it a wobbler offense. The judge has the discretion to make the crime a felony, even if charged as a misdemeanor. The ultimate sentence is also within the judge’s discretion.
If convicted of this crime as a misdemeanor, you may face incarceration in a county jail for a period not to exceed one year.
If convicted as a felony, you may face imprisonment in a state prison for sixteen months, two years, or three years.
Active participation in a street crime, if a felony, constitutes a “violent” crime and is a strike under California’s three-strike rule. That means if you have prior felony convictions, you may face higher penalties, up to life in prison.
Defenses Against the Charge of Participation in a Criminal Street Gang
Because there are so many elements to the offense of participating in a criminal street gang, numerous defenses exist. Some common defenses Spolin Law P.C. might use include the following:
Lack of Existence of a Criminal Street Gang
While demonstrating the existence of a street gang requires minimal evidence of association, an ongoing group, organization, or association must exist. If the defendant is involved with people who are not part of an ongoing group, there can be no gang. Evidence that the group did not meet regularly, had no hierarchy, or did not act together frequently can defeat a claim that a criminal street gang existed.
Lack of Participation by the Defendant
A person’s participation in a criminal street gang needs to be more than minimal or nominal, terms that are not defined by statute. If the defendant only infrequently associated with a gang or its members or had no connection to the gang as whole, such evidence may demonstrate that the defendant did not participate in the street gang.
Committing Crimes Was Not One of the Primary Activities of the Gang
To be a street gang under PC 186.22(a), committing crimes under PC 186.22(e)(1)–(25), (30)–(33) must be one of the group’s chief or principal activities rather than just an occasional act committed by a member or members of the gang. The lack of relevant criminal activity, the infrequency with which the crimes were committed, and evidence of other activities of the group may demonstrate that committing the crimes listed in the statute was not a primary activity of the street gang.
No Pattern of Criminal Gang Activity
The state does not need to prove much to demonstrate that a gang had a pattern of criminal activity. Generally, two “predicate” offenses are enough to show a pattern. But if the offenses are completely unrelated, committed by different people, and committed a significant period of time apart, a defendant may defeat a claim that the gang engaged in a pattern of criminal activity.
Lack of Actual Knowledge
PC 186.22(a) requires that the defendant have actual knowledge that the gang in which they participated had a pattern of criminal activity. Showing that the defendant did not actively participate in the gang or engage in criminal acts with gang members may show lack of actual knowledge. The infrequency of crimes committed by the gang may also demonstrate that the defendant lacked actual knowledge of the gang’s criminal activities.
No Willful Participation in or Assistance in the Commission of the Felony
To violate PC 186.22(a), a defendant must willfully promote, further, or assist in the commission of felonious conduct, either by directly participating in the act or aiding and abetting the act. If the defendant was a mere bystander to the act or was not present when the act was committed, the evidence may be insufficient to establish that the defendant participated in or assisted the commission of the felony. Likewise, if the gang forced the defendant to participate or aid the offenses against their will, such evidence may be a defense to a violation of PC 186.22(a).
To learn how these defenses may work in your case, call Spolin Law P.C. at (310) 424-5816.
- How to Win Against Gang-Related Charges
- California Street Terrorism Enforcement and Prevention Act (“STEP” Act)
- PC 186.22(a) — Participation in a Criminal Street Gang
- Other Related Gang Offenses
- Learn About Top Gang Crimes Defense Lawyers
Other Related Gang Offenses
There are several other gang-related offenses that may be charged in collaboration with participation in a criminal street gang. Others of these may be charged separately as independent offenses. Many of these offenses involve similar penalties and can use the same defenses that have been previously mentioned.
PC 186.26(a) — Influencing Others to Join or Stay in a Criminal Street Gang
Under California PC 186.26(a), it is unlawful to “solicit or recruit” another person to actively participate in a criminal street gang with the intent that the person participate in a pattern of criminal street-gang activity or promote, further, or assist in any felonious conduct by members of the criminal street gang.
Note that this statute makes it unlawful to solicit or recruit a person to “participate,” not “actively participate,” in a pattern of criminal street activity, so that the scope of the prohibition is broader than PC 186.22(a), which makes it unlawful to actively participate in street gang activity.
PC 186.26(a) does not require that a person solicit or recruit another to join a street gang. It only requires that a person solicit or recruit another to participate in street gang activity or to promote, further, or assist felonious conduct by the gang.
Conduct that constitutes soliciting or recruiting is not defined by the statute and is determined on a case-by-case basis. Generally, to solicit would be to request, urge, invite, entice, or seek to persuade another person to do something. To “recruit” may include other conduct or have other meanings, some specific to the gang. The person must take some action to solicit or recruit another to participate in street gang activity or felonious conduct. Participating in an initiation ceremony, for example, would not be enough to constitute soliciting or recruiting.
Preventing a person from leaving a street gang is also unlawful if physical violence is used to keep the person from leaving.
Penalties for Influencing Others to Join or Stay in a Criminal Street Gang
Soliciting or recruiting is a felony, punishable by imprisonment in the state prison for sixteen months, two years, or three years.
If the person threatens another person with physical violence on two or more separate occasions within a 30-day period with the intent to coerce, induce, or solicit any person to actively participate in a criminal street gang, then they may face imprisonment in a state prison for two, three, or four years.
If the person used physical violence to get another person to actively participate in any criminal street gang or to prevent a person from leaving a criminal street gang, they may face incarceration in a state prison for three, four, or five years.
If a person solicits, recruits, coerces, or threatens a minor to participate in, or prevents them from leaving a gang, they may face the above penalties plus an additional consecutive three-year term of incarceration.
Unique Defenses for Influencing Others to Join or Stay in a Criminal Street Gang
No Solicitation or Recruitment
There must be some conduct on the part of the defendant to request, urge, invite, entice, or seek to persuade another to participate in a pattern of criminal street gang activity. Without such conduct, a charge of solicitation or recruitment will fail.
No Solicitation to Participate
The offense as defined is soliciting or recruiting someone to participate in street gang activity or felonious conduct by gang members. If the defendant solicited or recruited a person to join the gang, but there is no evidence that the defendant also solicited participation by the recruit in street-gang activity or felonious conduct, the charge under PC 186.26(a) fails.
Lack of Intent
Lack of intent that a person participates in a pattern of criminal street-gang activity or promote, further, or assist felonious conduct by members of the gang prevents conviction for a violation of PC 186.26(a). The intent required here is specific: the person recruiting or soliciting another must have done so with the intent that the other person participate in “a pattern” of criminal street gang activity or felonious conduct by “gang members.” If the defendant lacked the intent to have the recruited or solicited person do either of these things, there can be no violation of PC 186.26(a).
PC 186.28(a)(1) — Supplying Firearms to a Gang
Another tool in the state’s belt to charge a person with a gang-related crime is PC 186.28(a)(1). Under PC 186.28(a)(1), supplying, selling, or giving firearms to a gang member or to a gang is unlawful in some circumstances. To establish a violation of this section, the prosecution must show the following elements:
- The person, corporation, or firm supplying, selling, or giving the firearm had actual knowledge that the person would use it in the commission of a felony while actively participating in a criminal street gang the members of which engage in a pattern of criminal street activity;
- The firearm was in fact used in the commission of a felony listed in PC 186.22(e); AND
- The person to whom the firearm was given has been convicted of that felony.
Penalties for Violation of PC 186.28(a)(1)
A violation of 186.28(a)(1) is a wobbler offense. If charged as a misdemeanor, the penalty is incarceration in a county jail for 30 days to six months. If charged as a felony, the penalty is imprisonment for 16 months, two years, or three years, and/or a fine of $1,000.
Defenses to Charges of Supplying Firearms to a Gang
Lack of Actual Knowledge
Showing proof of lack of actual knowledge is a powerful defense to this crime. If the person selling or providing the firearm did not actually know of the existence of a criminal street gang or did not know the firearm would be used to perpetrate a felony, there can be no conviction under this section. Other defenses include the lack of a criminal street gang, lack of criminal street gang activity, and lack of a pattern of criminal street gang activity.
PC 182(a) — Conspiracy
A person may be convicted of conspiracy to participate in a criminal street gang. PC 182(a) prohibits a conspiracy to commit “any crime,” and that includes the crime of participating in a criminal street gang.
The traditional elements of conspiracy law apply to this offense. The defendant and at least one other person must have agreed to “participate” in a street gang, which, as stated above, means that the person intended to have a more than nominal or passive connection to a criminal street gang, and they must have made an overt act toward the commission of the crime.
PC 182.5 — The Other Conspiracy Offense
As stated above, belonging to a street gang is not a crime in California, although participating in a criminal street gang may be. A special provision of California law, PC 182.5, delineates the gang-related crime of “conspiracy,” which is separate from the crime of conspiracy to participate in a criminal street gang and which comes close to criminalizing gang membership. To prove a violation of this statute requires evidence that a person:
- Actively participated in a criminal street gang (a violation of PC 186.22(a)),
- Knew that the gang members engage in or have engaged in a pattern of criminal gang activity, AND
- Willfully promoted, furthered, assisted, or benefitted from any felonious criminal conduct by members of that gang.
PC 182.5, enacted along with other sections of the STEP Act, creates a new form of conspiracy. Under ordinary conspiracy law, the persons conspiring need not have known each other prior to the conspiracy. They have an agreement to commit an offense, and no ongoing ties to each other are necessary.
To violate PC 182.5, the accused must have some ties to the gang. Additionally, ordinary conspiracy encompasses committing misdemeanors, while PC 182.5 does not. In an ordinary PC 182(a) conspiracy case, the conspirators must have the intent to agree and the intent to commit a specified crime. PC 182.5 does not require any prior agreement to commit a particular crime. The offense of conspiracy under PC 182(a) requires only an overt act toward commission of the crime, while PC 182.5 requires that the felony actually be committed.
Finally, a person may violate PC 182.5 if they merely benefit from the felonious act, expanding the reach of conspiracy law beyond those who participate in the crime.
A backward, but careful parsing of the statutory language shows that the conduct prohibited is not participating in a street gang, as it is in PC 186.22(a), but willfully promoting, furthering, assisting, or benefitting from a gang’s felonious criminal conduct while actively participating in that gang and knowing that the gang engages in a pattern of criminal activity. To so promote, further, assist, or benefit from the crime is to conspire to commit the crime with the other gang members.
While a person must “actively participate” in the criminal street gang to violate PC 182.5, that person does not have to participate in the felonious criminal conduct of the gang to be convicted of conspiracy. It is enough that the person promote, further, assist, or benefit from such conduct. These terms are not defined by this section and so would have their ordinary dictionary meaning. The statute gives no indication that a person must “aid and abet” a crime as that term is used in California criminal law for his or her conduct to constitute “assisting” felonious criminal conduct by the gang. All these words are consequently read broadly to mean anything that contributes to or advances felonious criminal conduct by a gang.
Notably, a person may be found to have actively participated in felonious conduct if they “benefit” from the crime even if they committed no act in participation of the felony. To “benefit” is not defined by statute, and, by its ordinary meaning, may include such things as receiving money or goods from the commission of a felony; being advanced in status in the gang because of the felonious conduct of the other members of the gang; or gaining any other thing of value from the commission of the crime. This interpretation relies on the premise that gang activities contribute to the perpetuation of the gang members’ continued association for criminal purposes. The California Supreme Court stated that because of “the organized nature of gangs, active gang participants may benefit from crimes committed by other gang members.” If the state can prove such benefit, anyone benefitting can be convicted of conspiracy to commit the offense from which they benefitted, making any active participant in a gang a criminal.
Penalties for Violation of PC 182.5
The penalty for violating PC 182.5 is not clearly defined. As stated above, the criminal conduct prohibited by PC 182.5 is willfully promoting, furthering, assisting, or benefitting from felonious criminal conduct by a criminal street gang in which one participates. PC 182.5 does not indicate whether this crime is a felony or a misdemeanor. However, it does state that the crime is punishable as provided in PC 182(a).
The only logical and straightforward approach to determining the penalty that applies to the crime of conspiracy under PC 185.2 is to look at the felonious conduct that the defendant “promoted, furthered, assisted, or benefitted from.” That felony should determine the penalty under PC 182(a).
PC 182(a) is the provision of California law that makes conspiracy to commit a crime unlawful. It sets forth different penalties based on the crime that the person conspired to commit.
For example, if the conspiracy was to cheat and defraud any person of any property by criminal means, the penalty is incarceration in a county jail for not more than one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by a fine not exceeding $10,000, or by both imprisonment and the fine.
If the conspiracy was to commit any other felony, the punishment is the same as that for the underlying felony.
If the felony is one for which different punishments are prescribed for different degrees, the court or jury must determine the degree of the felony the defendant conspired to commit. If the degree is not determined, the punishment is that prescribed for the lesser degree of the felony, except in the case of conspiracy to commit murder, in which case the punishment is that prescribed for murder in the first degree.
If the conspiracy was to commit two or more felonies that have different punishments and the commission of those felonies constitute but one offense of conspiracy, the penalty shall be that prescribed for the felony that has the greater maximum term.
Penalties imposed for PC 182.5 conspiracy may be enhanced as described below in Gang-Related Felonies.
Defenses to Conspiracy
As the crime with which a gang member is charged gets further and further removed from conduct traditionally considered criminal, the harder it is to mount a defense or defenses to the charge. Conspiracy to participate in street gang activity (PC 186.22(a) and PC 182(a)) and the “conspiracy” crime in PC 182.5 are purposefully vague and slippery crimes designed to criminalize gang-member conduct. The defense to such charges must meet the allegations head-on.
The defenses available for a charge of conspiracy under either PC 182(a) or PC 182.5 are similar to those for participation in a criminal street gang:
- Lack of existence of a criminal street gang
- No evidence that the primary activity of the street gang was to commit crimes
- No pattern of criminal gang activity
- Lack of actual knowledge that the gang engaged in a pattern of criminal gang activity
- Lack of active participation
For a charge under PC 182(a), the following defenses may prevent conviction for conspiracy:
- Lack of an agreement to participate in criminal gang activity
- Lack of an overt act taken toward commission of the offense
For a charge under PC 182.5, the lack of willful promotion, furtherance, or assistance of and benefit from any felonious criminal conduct by members of a street gang will defeat the charge.
The last defense, that there was no “willful” promotion of or benefit from the felonious conduct may be crucial to a successful defense to the broadly and loosely defined “conspiracy” crime under PC 182.5. A person must willfully or purposefully have promoted, furthered, or assisted the crime or have willfully or purposefully benefitted from it. If the crime was committed by other members of the gang, a gang member may escape conviction for conspiracy if it can be shown that they did not willfully further or assist in the crime.
The more distant the crime from the defendant’s conduct, the greater the chance of overcoming a charge of conspiracy. In a large gang, for example, felonious conduct by its junior members may bear only a tangential relationship to another member’s participation in the gang, especially if the other gang member did not know about the commission of the crime and it was not committed for the entire gang’s benefit.
Likewise, demonstrating the lack of a benefit to the defendant may defeat this charge. If other gang members committed a felony, but the defendant gained nothing by it — no property, status, money, or advantage — the charge under PC 182.5 fails.
Any gang-related crimes can result in years in prison. It’s best to work with a criminal defense attorney who knows the law. Call Spolin Law P.C. at (310) 424-5816.
Gang-Related Felonies
These crimes are related to committing a crime in association with, at the direction of, or for the benefit of a street gang.
PC 186.22(b)(1) — Gang-Related Sentence Enhancements
PC 186.22(b)(1) does not create a new crime under California law, but it imposes additional or enhanced sentences on those who commit crimes that are “gang related” or that benefit a gang.
The penalty for a felony changes if a person commits any felony, and the person:
- Committed or attempted to commit the felony “for the benefit of, at the direction of, or in association with any criminal street gang” AND
- Acted with the specific intent “to promote, further, or assist in” criminal conduct by gang members
The person who committed the felony need not be a member of or an active participant in a gang. It is enough that the person acted for the benefit of, at the direction of, or in association with a gang with the specific intent to promote, further, or assist the criminal conduct of the gang (and not the gang itself).
Penalties Related to PC 186.22(b)(1)
The penalty for committing, attempting to commit, or conspiring to commit a felony (other than felonies described below under PC 186.22(b)(4) & (5)) for the benefit of, at the direction of, or in association with a gang is enhanced as follows:
- If it is a “serious” felony: an additional, consecutive term of five years.
- If it is a “violent” felony: an additional, consecutive term of ten years.
- If it is any other felony, an additional, consecutive term of two, three, or four years, based on the court’s determination of which sentence enhancement best serves the interests of justice.
Commission of the felony on the grounds of, or within 1,000 feet of, a school during school hours or when minors are using the facility is an aggravating circumstance that the judge must consider in exercising their discretion.
PC 1192.7(c)(28) makes any gang-related felony in violation of PC 186.22(b)(1) a “serious” felony and therefore a strike under California’s three-strike rule.
If the defendant is convicted of multiple offenses, the sentence for each offense may be enhanced if the jury finds that each offense was committed for the benefit of a gang. When multiple people are killed in a single incident, the sentence for each death of which the defendant is convicted is enhanced.
A person may not be punished both for committing a gang-related offense and for actively participating in a gang based on the same crime unless the gang crime is separate from the participation crime.
PC 186.22(b)(4) — Gang Enhancements
PC 186.22(b)(1) states that “except as provided in paragraphs (4) and (5),” the penalties for gang-related crimes are enhanced as set forth above. PC 186.22(b)(4) is a sentencing provision that gives courts the ability to impose harsher sentences for certain gang-related crimes. That paragraph states in part:
Any person who is convicted of a felony enumerated in this paragraph committed 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, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment…
The crimes enumerated in PC 186.22(b)(4) are:
- Home invasion robbery
- Carjacking
- Discharging a firearm at an occupied structure or vehicle
- Causing death or great bodily harm by discharging a firearm from a vehicle
- Extortion
- Attempting to dissuade a witness from testifying by force or threat of force
Thus, life imprisonment can be imposed for those crimes if they are gang-related.
Penalties Set Forth in PC 186.22(b)(4)
The minimum term to which the person is to be sentenced for these crimes is set forth in PC 186.22(b)(4)(A)–(C). Those subparagraphs state that the minimum term is the greatest of:
- Imprisonment in the state prison for fifteen years if the felony is home invasion robbery, carjacking, discharging a firearm at an occupied building or vehicle (if charged as a felony); or discharging a firearm from a vehicle and causing death or great bodily harm (PC 186.22(b)(4)(B));
- Imprisonment in the state prison for seven years if the felony is extortion or threats to victims or witnesses (PC 186.22(b)(4)(C));
- The term determined by the court for the underlying conviction if the felony is any of the offenses enumerated in subparagraph (B) or (C) (PC 186.22(b)(4)(A)).
PC 186.22(b)(5) — Limiting Parole
PC 186.22(b)(5) limits the ability of a person convicted of a certain gang-related crime to obtain parole. That paragraph states that any person who violates PC 186.22(b)(1) in the commission of a felony punishable by life imprisonment in the state prison must serve a minimum of fifteen years of the sentence before parole may be granted.
This paragraph applies to felonies that carry life terms and terms expressed as “x years to life.” Such crimes are not subject to the sentence-enhancing provisions of PC 186.22 but are subject to the fifteen-year minimum. The underlying felony must carry a life term; a felony whose term of imprisonment is enhanced to life because of gang-related specifications is not affected.
Fifteen years is the minimum term that must be served; the term could be longer depending on the imposition of punishment under PC 186.22(b)(4) or other sentencing provisions.
PC 190.2(a)(22) — Gang-Related Murder
Gang-related murders carry a severe term. PC 190.2(a)(22) states that a defendant convicted of first-degree murder is subject to a penalty of death or life without the possibility of parole if:
- They intentionally killed the victim;
- They were an active participant in a criminal street gang at the time of the offense; AND
- The murder was carried out to further the activities of the criminal street gang.
The phrase “to further the activities” of the street gang is undefined but appears to encompass a broader range of conduct than that required to prove participation in a street gang or to prove that a different crime was gang-related. Anything that “furthers” the gang’s activities — and not just its criminal conduct — would support imposition of the sentence of death/life without possibility of parole.
Failure to Register as a Gang Member
Gang members are not always required by law to register with law enforcement. However, registration is required of any person convicted in a criminal court or who has had a petition sustained in a juvenile court in California for any of the following offenses:
- Actively participating in a criminal street gang (PC 186.22(a));
- Any felony committed 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 (PC 186.22(b));
- Any crime that the court finds is “gang-related” at the time of sentencing or disposition. “Gang-related” means related to a criminal street gang as defined in PC 186.22(e) & (f). The state must prove that the crime was gang-related.
Registration entails registering with the chief of police of the city or the sheriff of the county in which the person resides within ten days of release from custody or within ten days of their arrival in any city, county, or city and county to reside there, whichever occurs first. The person must provide their fingerprints, address, and current photograph, as well as information such as aliases, gang monikers, date of birth, and information about a vehicle owned by them.
Penalties for Failure to Register as a Gang Member
Failure to register is a misdemeanor. PC 186.33(a). However, if the person fails to register and is subsequently convicted of a gang-related crime, the penalty is an additional sixteen months, two years, or three years in state prison. PC 186.33(b)(1).
- How to Win Against Gang-Related Charges
- California Street Terrorism Enforcement and Prevention Act (“STEP” Act)
- PC 186.22(a) — Participation in a Criminal Street Gang
- Other Related Gang Offenses
- Learn About Top Gang Crimes Defense Lawyers
Learn About Top Gang Crimes Defense Lawyers
Gang crimes are some of the most serious that can be alleged in California. The STEP Act and related Penal Code Sections make nearly every action involving a gang illegal. However, there are ways to fight back.
Spolin Law P.C.’s gang crimes defense attorneys have a record of successful outcomes. Our award-winning legal professionals win cases because:
- We know the law. Gang-related crimes and gang enhancements involve complex laws. Spolin Law P.C. knows the elements, defenses, and available motions that can attempt to get your case dismissed or key evidence excluded.
- We get to know local law enforcement. It’s important to know the authorities working in each jurisdiction. When we aren’t familiar with an officer, we request records that might affect your case. Police officers and gang experts should be challenged, so the more we know about them, the better.
- We know how to win. Spolin Law P.C. has a record of success. We analyze the facts of every case and develop proven strategies to win. Every case is unique, and we always work to achieve a positive outcome.
If you have questions about your case, contact Mr. Spolin and his team at the law firm Spolin Law P.C. at (310) 424-5816.