In Nevada, any felonies committed as part of a gang require additional punishments. In some cases the court may impose an extra twenty years in prison.
In this article our Las Vegas criminal defense attorneys provide an overview of how Nevada gang crimes are punished. Keep reading to learn the definition of gangs, the defenses to gang crime charges, and the sentences a "gang enhancement" carries.
Before someone may be convicted of committing a felony in Nevada in furtherance of a gang, the prosecution first has to prove beyond a reasonable doubt that the defendant is part of a gang:
The legal definition of a "criminal gang" in Las Vegas, Nevada is "any combination of persons, organized formally or informally, so constructed that the organization will continue its operation even if individual members enter or leave the organization, and which:
(a) Has a common name or identifying symbol;
(b) Has particular conduct, status and customs indicative of it; and
(c) Has as one of its common activities engaging in criminal activity punishable as a felony, other than the conduct which constitutes the primary offense."
When a court holds a hearing to determine whether a defendant committed a felony in Nevada on behalf of a gang, both the prosecution and defense may offer expert testimony to show particular conduct, status and customs indicative of criminal gangs such as:
(a) Characteristics of persons who are members of criminal gangs;
(b) Specific rivalries between criminal gangs;
(c) Common practices and operations of criminal gangs and the members of those gangs;
(d) Social customs and behavior of members of criminal gangs;
(e) Terminology used by members of criminal gangs;
(f) Codes of conduct, including criminal conduct, of particular criminal gangs; and
(g) The types of crimes that are likely to be committed by a particular criminal gang or by criminal gangs in general.
Learn more about how gangs are detected and arrested at the Las Vegas Metropolitan Police Gang Crimes Bureau.
Gang activity as an additional penalty
A person who is convicted of a felony committed knowingly for the benefit of, at the direction of, or in affiliation with a criminal gang, with the specific intent to promote, further or assist the activities of the criminal gang will receive an additional punishment under NRS 193.168.
Note that committing a felony in furtherance of a gang is not a separate crime . . . instead it is an "enhancement" of the original crime carrying an extra sentence that will be added to the sentence for the underlying felony.
Also note that the D.A. is required to allege in the original charging documents that the defendant acted on behalf of a gang. If the D.A. fails to do so, then it may not seek an additional "gang enhancement" penalty if the defendant gets convicted of the underlying felony.
Nevada courts can not impose an additional penalty for committing a felony on behalf of a gang if the underlying felony was for the Nevada crime of gang recruitment under NRS 201.570.
Furthermore, courts can not impose an additional penalty for committing a felony on behalf of a gang if the defendant was already sentenced to an additional term for either:
- committing the felony at a school under NRS 193.161;
- committing the felony with the assistance of a child under NRS 193.162;
- committing the felony with a handgun containing a metal-penetrating bullet under NRS 193.163;
- committing the felony using a deadly weapon or tear gas under NRS 193.165;
- committing the felony in violation of a protective order in Nevada under NRS 193.166;
- committing the felony against a person sixty years old or older or a vulnerable person (such as a disabled person) under NRS 193.167;
- committing the felony as a hate crime in Nevada under NRS 193.1675;
- committing the felony as an act of terrorism in Nevada under NRS 193.1685;
- failing to seek medical assistance for a person injured or killed by controlled substances under NRS 453.3335;
- selling, dispensing or manufacturing controlled substance near a school, bus stop, park or recreational facility for minors under NRS 453.3345 (see Nevada drug crimes);
- making, selling or trafficking methamphetamine in a matter which creates great risk of death or substantial bodily harm in Nevada to another, or within 500 feet of a residence, business, church, synagogue or other place of religious worship, public or private school, campus of the Nevada System of Higher Education, playground, public park, public swimming pool or recreational center for youths under NRS 453.3351; or
- making, selling or trafficking controlled substances (other than marijuana) that results in death or substantial bodily harm in Nevada to another under NRS 453.3353
Federal Law for criminal street gangs
Federal law concerning criminal street gangs is considerably different and much narrower than Nevada's. To learn more go to our article on Federal law for criminal street gangs
The most effective way to fight Nevada allegations of gang activity turns on the specific facts of the case. Four common strategies a defense lawyer may use include:
- No intent: A gang member who commits a felony for his own purposes and without any connection to the gang should not be given an enhanced punishment. So if the D.A. cannot convince the court that the gang member's criminal activity was done on behalf of the gang, then that person may face penalties for the felony but not for the "gang enhancement."
- No gang: NRS 193.168 does not factor in if the defendant's alleged crimes were to further only a club or a crew as opposed to a full-fledged gang. If the prosecutor cannot prove that the organization in question qualified as an actual gang, then the defendant may not receive an additional penalty for breaking the law on behalf of a gang.
- No crime: A defendant will receive an additional punishment for committing a gang-related felony only if he/she gets convicted of the felony to begin with. If the defense attorney can show that the defendant was not responsible for the underlying felony charged in the case, then the whole lawsuit should get dismissed with no punishment whatsoever.
- Police misconduct: If the cops may have conducted an illegal search in order to find evidence of gang-related criminal activity, then a defense lawyer can file a Nevada motion to suppress asking the judge to disregard the illegally-obtained evidence. If the judge grants the Nevada motion to suppress, the prosecutor may then drop the charges for having insufficient proof.
Courts impose two prison sentences when someone is convicted in Nevada of committing a felony as part of a gang: A sentence for the underlying felony, and an additional sentence for gang affiliation under NRS 193.168. Note that these two sentences run concurrently (one after another).
The additional sentence for gang activity may be from one (1) year to twenty (20) years in Nevada State Prison. But also note that this "gang enhancement" sentence may be no longer than the sentence for the underlying crime. For example:
Example: John is convicted of committing the Nevada crime of burglary with his gang. He is sentenced to one year for the Nevada crime of burglary. Therefore his additional sentence for acting as part of a gang can be no longer than one year. So his total sentence would be two years.
A Nevada judge will consider all of the following factors when determining the length of a "gang enhancement" sentence:
- The facts and circumstances of the crime
- The defendant's criminal history
- How the crime impacted the victim (if any)
- Any mitigating factors the defendant presents (such as having an abused childhood or growing up in a broken home)
- Any other relevant information
Furthermore, the judge is required to state on the court record that it has considered all this information when deciding the final sentence.
Probation, suspended sentences, & sentence reductions
If a defendant is convicted of a felony done to benefit a gang, the judge may reduce or suspend the sentence for that underlying felony if the defendant offers substantial assistance in the arrest or conviction of people involved in the felony or other gang crimes. However the judge may not grant probation or a suspended sentence in lieu of the additional "gang enhancement" sentence.
Criminal Defense of Immigrants in Nevada
it is common for gang members to be immigrants or other non-citizens. And since gang culture often involves deportable offenses involving Nevada firearm crimes, Nevada drugs crimes, and violent crimes, gang members are frequently at risk of being thrown out of the U.S. Learn more about the criminal defense of immigrants in Nevada.
Arrested? Call . . . .
If you are accused of committing a felony for a gang under NRS 193.168 in Nevada, call Las Vegas criminal defense attorneys at 702-DEFENSE (702-333-3673). They offer free consultations to discuss the possibility of negotiating your charges down to lesser crimes or a full dismissal. And if necessary they can always take your case to trial and fight for a "not guilty" verdict.
And to learn about California's criminal street gang sentencing enhancement under Penal Code 186.22 PC, go to our page on California's criminal street gang sentencing enhancement under Penal Code 186.22 PC.