Penal Code 186.22 is the California statute that prohibits criminal street gang activity. People can be prosecuted under this section if they either (a) participate in a gang while furthering a felony, or (b) carry out a crime for the benefit of a gang. In some cases, a conviction could lead to a life term in state prison.
While Penal Code 186.22a punishes the crime of participating in a gang and promoting a felony, Penal Code 186.22b serves as a sentencing enhancement that imposes additional mandatory prison time when a person carries out a crime for the benefit of a gang. A defendant serves the additional sentence immediately after serving the sentence for the underlying offense.
Participation in a gang under Penal Code 186.22 PC is a wobbler offense that can be filed as a misdemeanor or a felony. As a misdemeanor, it carries a sentence of up to one year in jail. As a felony, it carries up to 3 years in jail or prison.
- two gang members commit a violent crime such as assault with a deadly weapon.
- a non-gang member carjacking another person for the benefit of a gang.
- a gang member engaging in felony money laundering at the direction of another gang member.
Criminal defense lawyers draw upon several legal strategies to help defendants contest criminal charges under this statute. A few common ones include showing that an accused:
- did not commit an underlying felony offense,
- was not an active participant in a gang, and/or
- did not act for the benefit of a gang.
As a misdemeanor offense, the crime is punishable by custody in county jail for up to one year. As a felony, the offense is punishable by a prison sentence of up to three years.
A violation of Penal Code 186.22b serves as a street gang sentencing enhancement. The violation will result in an additional three years to a life term in state prison. This time is served in addition and consecutive to the penalty the defendant receives for the underlying crime.
Our California criminal defense attorneys will explain the following in this article:
- 1. How does California law define “participation in a criminal street gang”?
- 2. What is the gang sentencing enhancement under PC 186.22b?
- 3. Are there legal defenses?
- 4. What are the penalties?
- 5. Are there related laws?
1. How does California law define “participation in a criminal street gang”?
A prosecutor has to prove the following to secure a conviction of participating in a street gang per PC 186.22a:
- the defendant “actively participated” in a criminal street gang,
- the defendant knew that the gang’s members engaged in a pattern of gang crimes,1 and
- the accused willfully assisted, furthered, or promoted felony criminal conduct by gang members.2
For purposes of this statute, “active participation” in gang activities means that someone participates in those activities in a way that is not merely passive, or in name only.3
Further, a “criminal street gang” is defined as any organization or group of three or more people that:
- has a common name or identifying sign or symbol,
- has, as one of its primary activities, the commission of one of a long list of California criminal offenses, and
- is engaged in a pattern of criminal gang activity, either alone or together.4
2. What is the gang sentencing enhancement under PC 186.22b?
A judge will impose the gang enhancement under PC 186.22b if:
- the defendant committed, or attempted, a crime for the benefit of, at the direction of, or in association with a criminal street gang,5 and
- when the defendant committed the crime, he/she intended to assist, further, or promote criminal gang-related conduct.6
Note that a prosecutor must convict the defendant of the underlying crime for this enhancement to apply. This means the prosecutor must successfully prove all the elements of that crime as well as the elements listed above.7
Unlike PC 186.22a, there is no requirement that an accused be an “active participant” in a gang at the time when he/she committed the crime.8
Example: Ramon is not a member of the well-known Norteno gang, but several of his friends are. One day, he and his friends throw a bottle at a car that is driven by an off-duty law enforcement officer. When the officer attempts to detain them, Ramon and his friends begin beating the officer, committing the crime of battery on a police officer.
Ramon is convicted and sentenced for that crime, and also receives a street gang sentencing enhancement. It does not matter that he was not a current active member of the Norteno gang, since he committed the crime in order to assist his friends (who are gang members) in their criminal conduct.
3. Are there legal defenses?
People accused under this law can challenge the accusation by raising a legal defense. Three common defenses include accused people showing that:
- there was no underlying crime.
- there was no gang participation.
- they did not act for the benefit of a gang.
3.1. No underlying crime
People are only subject to the gang enhancement law if they actually committed a felony (e.g., felony grand theft or extortion). Further, a prosecutor must prove all of the elements of this felony beyond a reasonable doubt. This means a defendant can always try to avoid an enhancement by showing that he/she never committed any specific felonies.
3.2. Not an active participant in a gang
Recall that people are not guilty under PC 186.22a unless they commit a felony and are also active members of a street gang. A defense then is for a defendant to show no presence of any gang affiliation. Or, a defendant can say that he/she was merely a passive member of a gang, or a member in name only.
3.3. Not acting for the benefit of a gang
Recall, too, that a person is not subject to the gang enhancement unless he/she committed a crime for the benefit of a gang. Therefore, defendants can try to avoid the enhancement by showing that they did not commit an offense to benefit or assist a street gang.
4. What are the penalties?
The penalties under this law will vary depending on whether a defendant is charged under:
- Penal Code 186.22a, or
- Penal Code 186.22b.
4.1. Penalties under PC 186.22a
A violation of PC 186.22a is a wobbler offense. A district attorney can charge a wobbler as either a misdemeanor or a felony.
A misdemeanor crime, per this statute, is punishable by:
- custody in county jail for up to one year, and/or
- a maximum fine of $1,000.9
A felony offense is punishable by:
- custody in state prison for up to three years, and/or
- a maximum fine of $10,000.10
4.2. Penalties under PC 186.22b
The amount of additional prison time that a defendant will receive under the gang sentencing enhancement will depend upon the particular facts of the case.
For example, defendants can receive an additional prison term of up to:
- four years if they committed a generic felony,
- five years if they committed a serious felony,
- 10 years if they committed a violent felony, and
- 15 years to life if they committed one of the specific felonies mentioned in the language of the statute (an example is home invasion robbery, per PC 213).11
Further, if the defendant’s underlying conviction is for a felony that is punishable by life imprisonment, he/she will be sentenced to a life term. In this case, the defendant will not earn credit towards his/her California parole eligibility until the party has served a minimum of 15 years.12
5. Are there related laws?
There are three laws related to California’s gang activities law. These are the:
- hate crime penalty enhancement – PC 422.75,
- 10-20-life law – PC 12022.53, and
- great bodily injury enhancement – PC 12022.7.
5.1. Hate crime penalty enhancement – PC 422.75
Per Penal Code 422.75, the hate crime penalty enhancement applies when people:
- are convicted of a felony, and
- that felony is also proven to be a hate crime.
Unlike with the gang enhancement, the maximum enhancement that a judge can impose under this law is an additional four years in prison.
5.2. 10-20-life law – PC 12022.53
Per Penal Code 12022.53, the 10-20-life law applies when people commit a felony and use a gun in the commission of that crime.
As with the street gang enhancement, a defendant could face a life prison term under this law. The term is imposed if a defendant kills or seriously injures another person with a gun while committing a felony.
5.3. Great bodily injury enhancement – PC 12022.7
Under Penal Code 12022.7, the great bodily injury enhancement applies when people inflict significant or substantial injury on a victim in the commission of a felony.
The maximum enhancement that can get imposed under this law is six years in prison. As with the gang-related enhancement under PC 186.22, a defendant serves the extra prison time under this law immediately after the sentence for the underlying felony.
For additional help…
For additional guidance or to discuss your case with a criminal defense lawyer, we invite you to contact our law firm at the Shouse Law Group. Our attorneys provide both free consultations and legal advice you can trust.
Our lawyers also represent clients throughout California State, including those in Los Angeles, Los Angeles County, Orange County, Long Beach, Riverside, Rancho Cucamonga, and San Bernardino.
- See, for example, People v. Prunty (2015), 62 Cal.4th 59.
- Judicial Council of California Criminal Jury Instructions (“CALCRIM”) No. 1400 – Active Participation in Criminal Street Gang. See also People v. Mesa (2012), 54 Cal.4th 191; and, People v. Valencia (2021), 11 Cal.5th 818.
- See, for example, People v. Castenada (2000), 23 Cal.4th 743.
- CALCRIM No. 1400. See also People v. Duran (2002), 97 Cal.App.4th 1448.
- See, for example, People v. Gonzalez (2021), 59 Cal.App.5th 643.
- CALCRIM No. 1401 – Felony or Misdemeanor Committed for Benefit of Criminal Street Gang. See also People v. Albillar (2010), 51 Cal.4th 47.
- CALCRIM No. 1401.
- In re Ramon T. (1997), 57 Cal.App.4th 201. See also People v. Gonzales (2011) 199 Cal.App.4th 219; and, People v. Vargas (2020), 9 Cal.5th 793.
- California Penal Code 186.22a PC. Note that this code section was enacted as part of the Street Terrorism Enforcement and Prevention Act or, the STEP Act).
- California Penal Code 186.22a PC. See also California Penal Code 672 PC.
- California Penal Code 186.22b PC. See also Assembly Bill 333 (2021).
- See same.