California’s Criminal Street Gang Sentencing Enhancement
Penal Code 186.22 PC
We’re a criminal defense law firm of former district attorneys and former cops. We now defend accused gang members throughout California. If you need our help, call us.
California law punishes gang members…and those who associate with gang members…much more harshly than people who have no gang ties.
Penal Code 186.22 PC is part of the California Street Terrorism Enforcement and Prevention Act, more commonly referred to as California’s street gang enhancement law.
In its simplest terms, this law states that anyone who commits a felony for the benefit of a gang will receive a mandatory prison sentence in addition and consecutive to the penalty he/she receives for the underlying felony.
And…depending on the circumstances of the offense…this could mean an additional 5, 10, 15, or even 25-years-to-life in prison…even if you’re not a gang member and even if you aren’t the individual who is actively and directly responsible for committing the underlying felony.
But just because the prosecution charges you with a street gang sentencing enhancement doesn’t mean it will stick. In fact, our job is to make sure that it doesn't.
Below, our California criminal defense attorneys1 address the following:
1. The Crime of "Participation in a Gang"
2. The Gang Sentencing Enhancement
3. The Relationship to Other Sentencing
Enhancements
4. Legal Defenses
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
You may also find helpful information in our related articles on California Firearm Offenses; Penal Code 12025 PC Carrying a Concealed Weapon; Penal Code 12031 PC Carrying a Loaded Firearm; Penal Code 12021 PC Felon with a Firearm; Penal Code 417 PC Brandishing a Weapon; Penal Code 246 PC Shooting at an Inhabited Dwelling or Occupied Car; Penal Code 245(a)(2) Assault with a Firearm; Penal Code 215 PC Carjacking; Penal Code 518 PC Extortion; Penal Code 594 PC Vandalism; Penal Code 12022 Personal Use of a Firearm Sentencing Enhancement; California’s "10-20-life" Law; and California Legal Defenses.
1. The Crime of "Participation in a Gang"
There are actually two parts to Penal Code 186.22 PC. The first part deals with the separate crime of "engaging in gang activity. " The second part deals with sentencing enhancements.
Let’s begin by taking a look at the first part, Penal Code 186.22(a), which is referred to as California’s "active and knowing participation in a criminal street gang" law.
In order to convict you of this offense, the prosecutor must prove the following three facts (otherwise known as "elements" of the offense):
- that you actively participated in a gang,
- knowing that it’s members "engage in a pattern of criminal gang activity", and
- that you willfully "promoted, furthered, or assisted" in any felonious conduct by members of that gang.
If proven, you face either
- a misdemeanor, punishable by a maximum one-year county jail sentence, or
- a felony, punishable by 16 months, or two or three years in the California State Prison.
The offense of active and knowing participation in a criminal street gang punishes the act of being involved with a gang, irrespective of any other crime.2 This law targets the individual who has the intent and objective to further, promote, or assist a gang in its unlawful conduct.
Furthermore, the law not only applies to the person who directly and actively commits a crime but also to anyone who aids and abets that individual.3
The legal definition of active and knowing participation in a criminal street gang
"Active" participation
"Active" participation in a gang means "involvement with a criminal street gang that is more than nominal or passive".4
In order to prove that you "actively" participate in a gang, the prosecution doesn’t need to prove that you devote all or even a substantial part of your time to a gang. Similarly, he/she doesn’t need to prove that you are a leader of the gang, a shot-caller or that you are even necessarily a member of the gang.5
Example: In People v. Castenada, the court held that the defendant violated California’s "active participation in a street gang" law. It did so based on evidence that
(1) the police recognized the defendant as someone who they had seen on numerous occasions associating with known "Goldenwest" gang members,
(2) the defendant had previously admitted that he "kicked back" with the gang even though he wasn’t a member, and
(3) the characteristics defining the robbery that the defendant committed were typical of those committed by "Goldenwest" to put residents on notice of the gang’s control of the neighborhood.6
"Criminal street gang"
A "criminal street gang" is any ongoing organization, association, or group of three or more persons, whether formal or informal, that commits crimes as one of its primary activities. A criminal street gang also has:
- a common name,
- an identifying sign or symbol, and
- members who individually or collectively engage in or have engaged in a "pattern of criminal gang activity".7
"Pattern of criminal gang activity"
In its simplest terms, a "pattern" of criminal gang activity means the commission, attempted commission, conspiracy, solicitation, or conviction of two or more specific offenses that take place within a specific timeframe and are committed on separate occasions by two or more people.8
And even though it seems odd, it isn’t necessary for the prosecution to prove that these offenses were gang-related.9
"Primary" activities
With respect to California’s gang laws, "primary" activities are those that rank among the gang’s principal endeavors. Put another way, "primary" activities necessarily exclude occasional crimes committed by the group.10
"Promote, further, or assist in felonious conduct"
In order to prove that you "promoted, furthered, or assisted in felonious conduct," the prosecutor must prove that you either
- directly and actively committed a felony offense, or
- aided and abetted felonious conduct by members of a gang.11
There is no requirement that you participated in or aided and abetted another person in felonious conduct prior to the underlying gang-related felony offense.12 That you did so on the occasion in question is sufficient to establish your guilt for this crime.
Misdemeanor gun charges are not by themselves "felonious" conduct
Penal Code 12025 PC California’s law against carrying a concealed weapon and Penal Code 12031 PC California’s law against carrying a loaded firearm both have provisions that elevate these otherwise misdemeanor offenses to felonies if committed by an "active participant in a criminal street gang".13
But before the court can impose these enhanced penalties, the prosecutor must prove that you meet the elements of Penal Code 186.22(a). If the misdemeanor gun offenses are the only laws that you violate, these misdemeanor offenses do not meet the felonious conduct requirement under this code.14 "Felonious" conduct necessarily implies a felony has been attempted or committed.
As a result, misdemeanor gun charges will not be elevated to felonies based on being an "active participant in a gang" unless there is some additional felonious conduct.
However, a violation of a felony gun charge such as Penal Code 12021 PC California’s "felon with a firearm" law is sufficient in and of itself to trigger a Penal Code 186.22(a) penalty.
2. Penal Code 186.22(b) California’s Criminal Gang
Sentencing Enhancement Law
The second part of Penal Code 186.22 PC involves the sentencing enhancement. Unlike subsection "a" above, there is no requirement that an individual subject to this gang enhancement be an "active participant" in the gang.15
Penal Code 186.22(b) PC increases the punishment for "any person who is convicted of a felony committed
- for the benefit of,
- at the direction of, or
- in association with any criminal street gang, and
- with the specific intent to promote, further, or assist in any criminal conduct by gang members".
The underlying felony is the most important consideration in determining the length of the additional sentence.
In fact, the only other consideration is whether the underlying offense took place in a "school zone" (that is, on or within 1,000 feet of a public or private school). If it did, there is no "set" sentence. That fact simply acts as an aggravating circumstance that the judge may take into consideration when determining the length of your sentence.16
"Generic" felonies
If convicted of a "generic" felony…as opposed to one of the specific felonies addressed below…that you committed for gang purposes, you face two, three, or four years in the state prison. This sentence is in addition and consecutive to the penalty you receive for the underlying felony (as well as any additional charges).17
It is important to understand that before you can be sentenced to this California criminal street gang enhancement, you must first be convicted of the underlying felony. Unlike Penal Code 186.22(a), PC 186.22(b) is not a crime in and of itself. It is only imposed if you are convicted of
- at least one felony, that
- you committed for the benefit of or at the direction of a criminal street gang.
"Serious" felonies
If the underlying conviction is for a "serious" felony…committed for one of the above reasons…you face five years in the state prison in addition and consecutive to that penalty.18
There are over 42 types of California serious felonies. Examples include (but are not limited to):
- Penal Code 246 PC California’s law against shooting at an inhabited dwelling or occupied car,
- certain California drug crimes,
- being a prison inmate and holding another person hostage,
- assault with a deadly weapon by an inmate,
- Penal Code 245(a)(1) PC assault with a deadly weapon against a peace officer,
- Penal Code 245(a)(2) PC assault with a firearm against a peace officer or firefighter, and
- Penal Code 422 PC California’s law against making criminal threats.19
"Violent" felonies
If the underlying conviction is for a "violent" felony…committed for one of the above stated reasons…you face ten years in the state prison in addition and consecutive to that penalty.20 There are over 23 different California violent felonies. Examples include (but are not limited to):
- Penal Code 187 PC murder,
- any felony in which the defendant inflicts great bodily injury upon a victim,
- Penal Code 203 and 205 PC California’s mayhem laws,
- specific California sex crimes,
- Penal Code 136.1 PC dissuading a witness, and
- Penal Code 518 PC California’s extortion law.21
Many of the crimes that qualify as violent felonies also qualify as serious felonies. When you are convicted of one of these felonies, the court sentences you according to the most severe California criminal street gang enhancement -- the violent felony enhancement.
However, there is a caveat: the judge ultimately reserves the discretion to impose the lesser enhancement. For that matter, the judge reserves discretion to strike the gang enhancement altogether if your California criminal defense lawyer can persuade him/her that it is "in the interests of justice" to do so.22
Specific felonies
There are a few remaining felonies that…if committed for the above stated reasons…subject you to a potential life sentence (otherwise known as an indeterminate sentence).
If the underlying felony that you are convicted of is
- Penal Code 213 PC home invasion robbery,
- Penal Code 215 PC California’s carjacking law,
- a felony violation of shooting at an inhabited dwelling or occupied car in violation of Penal Code 246 PC, or
- Penal Code 12022.55 PC discharging a firearm from a motor vehicle (more commonly referred to as a "drive-by" shooting) that causes death or great bodily injury,
you face a minimum of 15-years-to-life in the state prison.23
If convicted of Penal Code 519 PC extortion or Penal Code 136.1 PC dissuading a witness as the underlying felony, you face a minimum of 7-years-to-life in the state prison.24
If the underlying conviction is for a felony that is punishable by life imprisonment, you will be sentenced to a life term. If convicted under this subsection, you will not earn credit towards your California parole eligibility until you have served a minimum of 15 years.25
Penal Code 186.22(d)
There is one last penalty that Penal Code 186.22 PC imposes which is found in Penal Code 186.22(d).
This subdivision allows the prosecution to turn any misdemeanor crime into a felony if the misdemeanor is, once again, 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."26
Example: Tony is arrested for violating Penal Code 417 PC California’s "brandishing a weapon" law -- a misdemeanor. At the time he "brandished" his gun, he was calling out the name of his gang to a rival gang member". This allows prosecutors to charge Tony with Penal Code 417 as a felony.
But if prosecutors elect this option, they are prohibited from taking the "new" felony and applying it to one of the enhancements under Penal Code 186.22(b).27
Example: Mike is arrested for violating Penal Code 594 PC California’s misdemeanor vandalism law. Because Mike "tagged" his gang’s name, the offense is gang-related and prosecutors charge Mike with felony vandalism under Penal Code 186.22(d). Subdivision (d) is the enhanced penalty under these circumstances.
This means that prosecutors can’t, at the same time, file a street gang sentencing enhancement under Penal Code 186.22(b).
Doing so would trigger a doubly harsh punishment, which was not the legislative intent behind California’s criminal street gang sentencing enhancement.28
3. California’s Street Gang Enhancement Law and
its Relationship to Other Sentencing
Enhancements
There are a variety of California sentencing enhancements that typical gang offenses may trigger. There is, of course, California’s gang enhancement that is the focus of this article. And there are two others that may be charged in connection with (or in lieu of) this law: (1) personal use of a gun, and (2) California’s "10-20-life" law.
Personal use of a gun
Penal Code 12022 and 12022.5 PC are California’s sentencing enhancements for personal use of a gun. The first adds a one to three year sentence enhancement if any principal is armed with a gun during the commission of a felony.29
"Principals" are people who actively and directly commit a crime and the people who aid and abet those efforts. This means that even if you aren’t personally armed…but someone else involved in the felony is…each of you could nevertheless face this enhancement.
The second enhancement, Penal Code 12022.5 PC adds a three, four, or ten year additional and consecutive sentence if you personally use a gun during the commission of the underlying offense.30 This sentencing enhancement is for "generic" felonies, as opposed to the specific felonies covered by California’s "10-20-life" law.
California’s "10-20-life" law
The second enhancement that frequently gets charged in connection with California’s gang law is California’s "10-20-life ‘use a gun and you’re done’" law. California’s "10-20-life" law is found in Penal Code 12022.53 PC.
Under this sentencing enhancement,
- personally using a gun during the commission of specific felonies subjects you to a ten-year prison sentence in addition and consecutive to the penalty for the underlying felony,
- personally discharging a gun subjects you to an additional 20 years, and
- personally discharging a gun that results in great bodily injury or death to another person subjects you to an additional 25-years-to-life.31
This means that if you personally use or discharge a gun during a felony that you "commit for the benefit of a gang", you will likely suffer an enhancement under Penal Code 186.22(b) and California’s "10-20-life" law.32
However, there is an exception. If the underlying offense is a California firearms crime, you may only receive one sentence enhancement -- the greater of the available sentencing enhancements.33
This is just one reason why it is critical to consult with a criminal defense attorney who has a thorough understanding of California’s firearm laws and California’s gang laws. An attorney who is unfamiliar with these laws will surely perform a disservice to his client, since he/she won’t know when the prosecutor or judge is imposing an illegal enhancement.
As Pasadena criminal defense attorney Darrell York34 explains, "California gun laws are complex. And California gang laws are even more so. A lawyer who has mastered these laws immediately recognizes when an overzealous…or even worse…an uneducated prosecutor is attempting to impose an illegal sentencing enhancement. What’s more is that we know how to prove our position to the court."
Multiple enhancements
Generally speaking, California law only allows an individual to suffer one sentencing enhancement for acts that involve the same course of conduct. However, if there are
- multiple victims, and
- the acts are separated by time and distance,
then an exception applies.
Under these circumstances, multiple enhancements are permitted.
Example: In People v. Akins, the defendant and other members of his gang robbed a man in his apartment. They then drove to another apartment building where they robbed a second man in his unit.
Even though both robberies were committed for the benefit of the gang…and were part of the same course of conduct…they actually involved separate victims, were separated by time and distance, and were separate robberies.
Because of this, the court held that two separate enhancements under Penal Code 186.22 PC were properly applied.35
4. Legal Defenses
Fortunately, there are number of ways for your California criminal defense lawyer to help fight your Penal Code 186.22 PC charges. Some of these include (but are not limited to):
Fight the underlying felony
If you successfully challenge the underlying felony allegations, you can’t receive a criminal street gang sentencing enhancement. For an example of the most common legal defenses that we use to fight charges, please see our page on California Legal Defenses.
Prove that you are not an "active participant" in a gang
Unless you have tattoos or other obvious markings on your body that clearly identify you as a gang member, we can dispute the prosecutor’s allegations that you are an "active participant" in a gang.
You weren’t acting "for the benefit of a gang"
Similarly, you avoid the enhancements under Penal Code 186.22(b) PC if you can prove that your acts were not affiliated with any gang activity.
For example, a gang member might commit a robbery just to try to get money for himself and his family. It may have nothing to do with the gang. But overzealous prosecutors may try to stick him with the gang enhancement just to "dirty him up" at trial…and to send him to prison for a longer term. Even he goes down for the robbery, if he nevertheless beats the gang allegation, his ultimate sentence will likely be much shorter.
Fight the legality of the enhancement
It bears repeating that California’s gang laws, firearms law, and sentencing laws are very complex. Sometimes even a well-meaning prosecutor or judge may not fully understand the relevant statutes and may file inappropriate or illegal charges against you.
When prosecutors are charging you with violating California’s gang laws, it is critical that your criminal defense lawyer meticulously reviews each and every aspect of the charge to ensure that you are not facing unjust charges.
And on that note…
Argue that imposition of the sentence is against the "interests of justice"
If all else fails and you are convicted under Penal Code 186.22 PC remember that the judge reserves the discretion to strike the allegation or…at the very least…to minimize your period of incarceration.
Providing information about your job history, family contributions and obligations, and character might help persuade the judge to exercise that discretion instead of blindly sentencing you under this code.
Call us for help…
For more information about California’s gang laws, or to discuss your case confidentially with one of our attorneys, do not hesitate to contact us at Shouse Law Group.
Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions relating to Nevada’s gang-related crimes. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.36
For more information about Nevada gang recruitment laws, go to our informational article on Nevada gang recruitment laws.
Legal References:
1Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
2People v. Ngoun (2001) 88 Cal.App.4th 432, 435. ("The statute [California Penal Code 186.22 PC California’s street gang enhancement law] was a legislative response to the increasing violence of street gang members throughout the state. Subdivision (a) created a substantive offense for active participation in a criminal street gang; before its enactment, no law authorized the punishment of a gang member for gang membership irrespective of the punishment imposed upon the principal for the gang crime itself…186.22, subdivision (a) punishes active gang participation where the defendant promotes or assists in felonious conduct by the gang. It is a substantive offense whose gravamen is the participation in the gang itself."
3See same at 436. ("…this subdivision [California Penal Code 186.22(a) being an active participant in a gang] applies to the perpetrator of felonious gang-related criminal conduct as well as to the aider and abettor.")
4People v. Castenada (2000) 23 Cal.4th 743, 747…and at 752 ("Moreover, as we have explained, every person incurring criminal liability under section 186.22(a) [California’s gang law] has aided and abetted a separate felony offense committed by gang members. (See ante, 97 Cal.Rptr.2d p. 911, 3 P.3d p. 282.) By linking criminal liability to a defendant's criminal conduct in furtherance of a street gang, section 186.22(a) reaches only those street gang participants whose gang involvement is, by definition, "more than nominal or passive."")
5See same at 745. ("To prove that a defendant "actively participates" in a gang, must the prosecution show that the defendant held a leadership position in the gang? Or is it sufficient if the evidence establishes that the defendant's involvement with the gang is more than nominal or passive? We conclude the latter.")
See also Penal Code 186.22 PC -- California’s criminal street gang enhancement law. ("(i) In order to secure a conviction or sustain a juvenile petition, pursuant to subdivision (a) it 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, nor is it necessary to prove that the person is a member of the criminal street gang. Active participation in the criminal street gang is all that is required.")
6People v. Castenada (2000) 23 Cal.4th 743
7Penal Code 186.22 PC -- California’s criminal street gang enhancement law. ("(f) As used in this chapter, "criminal street gang" means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e) [discussed below in endnote 8], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.")
8Penal Code 186.22 PC -- California’s criminal street gang enhancement law. ("(e) As used in this chapter, "pattern of criminal gang activity" means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and 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: (1) Assault with a deadly weapon or by means of force likely to produce great bodily injury, as defined in Section 245. (2) Robbery, as defined in Chapter 4 (commencing with Section 211) of Title 8 of Part 1. (3) Unlawful homicide or manslaughter, as defined in Chapter 1 (commencing with Section 187) of Title 8 of Part 1. (4) The sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture controlled substances as defined in Sections 11054, 11055, 11056, 11057, and 11058 of the Health and Safety Code. (5) Shooting at an inhabited dwelling or occupied motor vehicle, as defined in Section 246. (6) Discharging or permitting the discharge of a firearm from a motor vehicle, as defined in subdivisions (a) and (b) of Section 12034. (7) Arson, as defined in Chapter 1 (commencing with Section 450) of Title 13. (8) The intimidation of witnesses and victims, as defined in Section 136.1. (9) Grand theft, as defined in subdivision (a) or (c) of Section 487. (10) Grand theft of any firearm, vehicle, trailer, or vessel. (11) Burglary, as defined in Section 459. (12) Rape, as defined in Section 261. (13) Looting, as defined in Section 463. (14) Money laundering, as defined in Section 186.10. (15) Kidnapping, as defined in Section 207. (16) Mayhem, as defined in Section 203. (17) Aggravated mayhem, as defined in Section 205. (18) Torture, as defined in Section 206. (19) Felony extortion, as defined in Sections 518 and 520. (20) Felony vandalism, as defined in paragraph (1) of subdivision (b) of Section 594. (21) Carjacking, as defined in Section 215. (22) The sale, delivery, or transfer of a firearm, as defined in Section 12072. (23) Possession of a pistol, revolver, or other firearm capable of being concealed upon the person in violation of paragraph (1) of subdivision (a) of Section 12101. (24) Threats to commit crimes resulting in death or great bodily injury, as defined in Section 422. (25) Theft and unlawful taking or driving of a vehicle, as defined in Section 10851 of the Vehicle Code. (26) Felony theft of an access card or account information, as defined in Section 484e. (27) Counterfeiting, designing, using, attempting to use an access card, as defined in Section 484f. (28) Felony fraudulent use of an access card or account information, as defined in Section 484g. (29) Unlawful use of personal identifying information to obtain credit, goods, services, or medical information, as defined in Section 530.5. (30) Wrongfully obtaining Department of Motor Vehicles documentation, as defined in Section 529.7. (31) Prohibited possession of a firearm in violation of Section 12021. (32) Carrying a concealed firearm in violation of Section 12025. (33) Carrying a loaded firearm in violation of Section 12031.")
9People v. Gardeley (1996) 14 Cal.4th 605, 621. ("Here, the relevant statutory language is clear and unambiguous. Section 186.22, subdivision (e) [California’s street gang enhancement law] defines "pattern of criminal gang activity" as "the commission, attempted commission, or solicitation of two or more" enumerated offenses occurring within a specified time period, and "committed on separate occasions, or by two or more persons." Nothing in this statutory language suggests an intent by the Legislature to require the "two or more" predicate offenses to have been committed "for the benefit of, at the direction of, or in association with" the gang, as defendants contend.")
10People v. Sengpadychith (2001) 26 Cal.4th 316, 323. ("The phrase "primary activities," as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes be one of the group's "chief" or "principal" occupations. (See Webster's Internat. Dict. (2d ed.1942) p.1963 [defining "primary"].) That definition would necessarily exclude the occasional commission of those crimes by the group's members.")
11People v. Salcido (2007) 149 Cal.App.4th 356, 369. ("Instead, it told the jury it must find that Salcido "willfully promoted, furthered or assisted by either directly and actively committing a felony offense or aiding and abetting felonious criminal conduct by members of that gang." (Italics added.) As a result, the court correctly instructed the jury that Salcido could be convicted of the crime if he was a direct perpetrator of the felonious criminal conduct.")
12See same at 370. ("In sum, requiring an additional "separate" felony would defeat the Legislature's purpose of making gang participation itself a substantive crime, which is demonstrated by the commission of, or aiding and abetting, even a single instance of gang-related felonious conduct.")
13California Penal Code 12025 PC -- Carrying a concealed weapon. ("(b) Carrying a concealed firearm in violation of this section is punishable, as follows:...(3) Where the person is an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22, under the Street Terrorism Enforcement and Prevention Act (Chapter 11 (commencing with Section 186.20 [California’s gang law]) of Title 7 of Part 1), as a felony.")
See also California Penal Code 12031 PC -- Carrying a loaded firearm. ("(2) Carrying a loaded firearm in violation of this section is punishable, as follows:…(C) Where the person is an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22, under the Street Terrorism Enforcement and Prevention Act (Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1), as a felony.")
14People v. Lamas (2007) 42 Cal.4th 516, 524. ("In other words, all of section 186.22(a)'s [California’s gang law] elements must be satisfied, including that defendant willfully promoted, furthered, or assisted felonious conduct by his fellow gang members before section 12031(a)(2)(C) applies to elevate defendant's section 12031, subdivision (a)(1) misdemeanor offense to a felony. Stated conversely, section 12031(a)(2)(C) applies only after section 186.22(a) has been completely satisfied by conduct distinct from the otherwise misdemeanor conduct of carrying a loaded weapon in violation of section 12031, subdivision (a)(1). Therefore, defendant's misdemeanor conduct-being a gang member who carries a loaded firearm in public-cannot satisfy section 186.22(a)'s third element, felonious conduct, and then be used to elevate the otherwise misdemeanor offense to a felony.")
15In re Ramon T. (1997) 57 Cal.App.4th 201, 206. ("Appellant is correct that the prosecution was required to prove that the Nortenos were a criminal street gang and that the crimes were committed for the benefit of, at the direction of or in association with the Nortenos. However, he is wrong in asserting that the prosecution was required to prove that he was a "current, active" member of that gang. Appellant's claim that he must be proven to be an "active" member of the Nortenos is based on People v. Green (1991) 227 Cal.App.3d 692, 700, 278 Cal.Rptr. 140 ( Green ). However, Green considered what was required to constitute a violation of section 186.22, subdivision (a)-a substantive offense which specifically requires "active" participation in a gang. FN2 No such requirement is found in section 186.22, subdivision (b) [California’s street gang enhancement law], which is an enhancement.")
16Penal Code 186.22 PC -- California’s criminal street gang enhancement law. ("(2) If the underlying felony described in paragraph (1) is committed on the grounds of, or within 1,000 feet of, a public or private elementary, vocational, junior high, or high school, during hours in which the facility is open for classes or school-related programs or when minors are using the facility, that fact shall be a circumstance in aggravation of the crime in imposing a term under paragraph (1).")
17Penal Code 186.22 PC -- California’s criminal street gang enhancement law. ("(b)(1) Except as provided in paragraphs (4) and (5), any person who is convicted of a 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, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: (A) Except as provided in subparagraphs (B) and (C), the person shall be punished by an additional term of two, three, or four years at the court's discretion.")
18See same. ("(B) If the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years.")
See also California Penal Code 1192.7(c) PC -- California serious felonies. ("(c) As used in this section, "serious felony" means any of the following: (1) Murder or voluntary manslaughter; (2) mayhem; (3) rape; (4) sodomy by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person; (5) oral copulation by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person; (6) lewd or lascivious act on a child under 14 years of age; (7) any felony punishable by death or imprisonment in the state prison for life; (8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm; (9) attempted murder; (10) assault with intent to commit rape or robbery; (11) assault with a deadly weapon or instrument on a peace officer; (12) assault by a life prisoner on a noninmate; (13) assault with a deadly weapon by an inmate; (14) arson; (15) exploding a destructive device or any explosive with intent to injure; (16) exploding a destructive device or any explosive causing bodily injury, great bodily injury, or mayhem; (17) exploding a destructive device or any explosive with intent to murder; (18) any burglary of the first degree; (19) robbery or bank robbery; (20) kidnapping; (21) holding of a hostage by a person confined in a state prison; (22) attempt to commit a felony punishable by death or imprisonment in the state prison for life; (23) any felony in which the defendant personally used a dangerous or deadly weapon; (24) [certain California drug crimes including] selling, furnishing, administering, giving, or offering to sell, furnish, administer, or give to a minor any heroin, cocaine, phencyclidine (PCP), or any methamphetamine-related drug, as described in paragraph (2) of subdivision (d) of Section 11055 of the Health and Safety Code, or any of the precursors of methamphetamines, as described in subparagraph (A) of paragraph (1) of subdivision (f) of Section 11055 or subdivision (a) of Section 11100 of the Health and Safety Code; (25) any violation of subdivision (a) of Section 289 where the act is accomplished against the victim's will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person; (26) grand theft involving a firearm; (27) carjacking; (28) any felony offense, which would also constitute a felony violation of Section 186.22 [California’s street gang enhancement law]; (29) assault with the intent to commit mayhem, rape, sodomy, or oral copulation, in violation of Section 220; (30) throwing acid or flammable substances, in violation of Section 244; (31) assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245; (32) assault with a deadly weapon against a public transit employee, custodial officer, or school employee, in violation of Sections 245.2, 245.3, or 245.5; (33) discharge of a firearm at an inhabited dwelling, vehicle, or aircraft, in violation of Section 246; (34) commission of rape or sexual penetration in concert with another person, in violation of Section 264.1; (35) continuous sexual abuse of a child, in violation of Section 288.5; (36) shooting from a vehicle, in violation of subdivision (c) or (d) of Section 12034; (37) intimidation of victims or witnesses, in violation of Section 136.1; (38) criminal threats, in violation of Section 422; (39) any attempt to commit a crime listed in this subdivision other than an assault; (40) any violation of Section 12022. 53; (41) a violation of subdivision (b) or (c) of Section 11418; and (42) any conspiracy to commit an offense described in this subdivision.")
19See same.
20Penal Code 186.22 PC -- California’s criminal street gang enhancement law. ("(C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years.")
See also Penal Code 667.5(c) PC -- California Violent felonies. ("(c) For the purpose of this section, "violent felony" shall mean any of the following: (1) [Penal Code 187] Murder or voluntary manslaughter. (2) [Penal Code 203 or 205 PC] Mayhem. (3) [Certain California sex crimes including] Rape as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262. (4) Sodomy as defined in subdivision (c) or (d) of Section 286. (5) Oral copulation as defined in subdivision (c) or (d) of Section 288a. (6) Lewd or lascivious act as defined in subdivision (a) or (b) of Section 288. (7) Any felony punishable by death or imprisonment in the state prison for life. (8) Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or after July 1, 1977, or as specified prior to July 1, 1977, in Sections 213, 264, and 461, or any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55. (9) Any robbery. (10) Arson, in violation of subdivision (a) or (b) of Section 451. (11) Sexual penetration as defined in subdivision (a) or (j) of Section 289. (12) Attempted murder. (13) A violation of Section 12308, 12309, or 12310. (14) Kidnapping. (15) Assault with the intent to commit a specified felony, in violation of Section 220. (16) Continuous sexual abuse of a child, in violation of Section 288.5. (17) Carjacking, as defined in subdivision (a) of Section 215. (18) Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1. (19) Extortion, as defined in Section 518, which would constitute a felony violation of Section 186.22 of the Penal Code [California’s street gang enhancement law]. (20) Threats to victims or witnesses, as defined in Section 136.1, which would constitute a felony violation of Section 186.22 of the Penal Code. (21) Any burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary. (22) Any violation of Section 12022.53. (23) A violation of subdivision (b) or (c) of Section 11418. The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence to display society's condemnation for these extraordinary crimes of violence against the person.")
21See same.
22Penal Code 186.22 PC -- California’s criminal street gang enhancement law. ("(3) The court shall select the sentence enhancement which, in the court's discretion, best serves the interests of justice and shall state the reasons for its choice on the record at the time of the sentencing in accordance with the provisions of subdivision (d) of Section 1170.1… (g) Notwithstanding any other law, the court may strike the additional punishment for the enhancements provided in this section or refuse to impose the minimum jail sentence for misdemeanors in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition.")
23Penal Code 186.22 PC -- California’s criminal street gang enhancement law. ("(4) 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 with a minimum term of the indeterminate sentence calculated as the greater of: (A) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 3046, if the felony is any of the offenses enumerated in subparagraph (B) or (C) of this paragraph. (B) Imprisonment in the state prison for 15 years, if the felony is a home invasion robbery, in violation of subparagraph (A) of paragraph (1) of subdivision (a) of Section 213; carjacking, as defined in Section 215; a felony violation of Section 246; or a violation of Section 12022.55.")
24See same. ("(C) Imprisonment in the state prison for seven years, if the felony is extortion, as defined in Section 519; or threats to victims and witnesses, as defined in Section 136.1.")
25See same. ("(5) Except as provided in paragraph (4), any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served." [This means that a defendant will not be parole eligible until he has actually served at least 15 years.)
26Penal Code 186.22 PC -- California’s criminal street gang enhancement law. ("(d) Any person who is convicted of a public offense punishable as a felony or a misdemeanor, which is 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 be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison for one, two, or three years, provided that any person sentenced to imprisonment in the county jail shall be imprisoned for a period not to exceed one year, but not less than 180 days, and shall not be eligible for release upon completion of sentence, parole, or any other basis, until he or she has served 180 days. If the court grants probation or suspends the execution of sentence imposed upon the defendant, it shall require as a condition thereof that the defendant serve 180 days in a county jail.")
27People v. Arroyas (2002) 96 Cal.App.4th 1439, 1445. ("While any felony may be punished under subdivision (b)(1), subdivision (d) presents an option to punish a felony differently than provided by subdivision (b)(1), and also provides an option to punish gang-related misdemeanors more severely. Although subdivision (d) allows the court to impose felony punishment for a misdemeanor committed with a gang-related purpose, nothing in the statute or in its stated purposes suggests an intention of the people of this state to bootstrap subdivision (d) misdemeanors into subdivision (b)(1) felonies as a means of applying a double dose of harsher punishment.")
28See same.
29California Penal Code 12022 PC -- Being armed with a firearm or personally using a dangerous or deadly weapon during the commission of a felony. ("(a)(1) Except as provided in subdivisions (c) and (d), any person who is armed with a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless the arming is an element of that offense. This additional term shall apply to any person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm….(b)(1) Any person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense. (2) If the person described in paragraph (1) has been convicted of carjacking or attempted carjacking, the additional term shall be one, two, or three years.")
30California Penal Code 12022.5 PC -- Personal use of firearms, assault weapons, or machine guns during the commission of a felony. ("(a) Except as provided in subdivision (b), any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense.")
31Penal Code 12022.53 PC -- California’s 10-20-life law. ("("(a) This section applies to the following felonies: (1) Section 187 (murder). (2) Section 203 or 205 (mayhem). (3) Section 207, 209, or 209.5 (kidnapping). (4) Section 211 (robbery). (5) Section 215 (carjacking). (6) Section 220 (assault with intent to commit a specified felony). (7) Subdivision (d) of Section 245 (assault with a firearm on a peace officer or firefighter). (8) Section 261 or 262 (rape). (9) Section 264.1 (rape or sexual penetration in concert). (10) Section 286 (sodomy). (11) Section 288 or 288.5 (lewd act on a child). (12) Section 288a (oral copulation). (13) Section 289 (sexual penetration). (14) Section 4500 (assault by a life prisoner). (15) Section 4501 (assault by a prisoner). (16) Section 4503 (holding a hostage by a prisoner). (17) Any felony punishable by death or imprisonment in the state prison for life. (18) Any attempt to commit a crime listed in this subdivision other than an assault. (b) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply. (c) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years. (d) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 12034, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.")
32Penal Code 12022.53 -- California’s 10-20-life "use a gun and you’re done" law. ("(2) An enhancement for participation in a criminal street gang pursuant to Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1 shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense.")
33California Penal Code 1170.1 -- Punishment. ("(f) When two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for the infliction of great bodily injury.")
See also People v. Rodriguez (2009) 47 Cal.4th 501, 508. ("There is no question that the additional punishments imposed under section 12022.5's subdivision (a) for "personally us[ing] a firearm in the commission of a felony," fall squarely within the limiting language of section 1170.1's subdivision (f). This is why: The additional punishments totaling five years and four months imposed under section 12022.5's subdivision (a) for defendant's personal use of a firearm in each of the three assaults were, in the words of section 1170.1's subdivision (f), punishments "for ... using ... a firearm in the commission of a single offense." The additional punishments totaling 13 years and four months under [Penal Code] section 186.22's subdivision (b)(1)(C) [California’s street gang enhancement law], the criminal street gang provision, were likewise based on defendant's firearm use. Because two different sentence enhancements were imposed for defendant's firearm use in each crime, section 1170.1's subdivision (f) requires that "only the greatest of those enhancements" be imposed.")
34Pasadena criminal defense attorney Darrell York uses his inside knowledge as a former police officer to defend clients throughout Los Angeles County, including Burbank, Glendale, Van Nuys and San Fernando.
35People v. Akins (2007) 56 Cal.App.4th 331
36Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada’s gang-related crimes. Their Nevada law offices are located in Reno and Las Vegas.
