Penal Code § 186.22 is the primary California statute that prohibits criminal street gang activity. Specifically, this section makes it a crime either:
- to participate in a gang while furthering a felony, or
- to carry out a crime for the benefit of a gang.
In some cases, a conviction could lead to a life term in state prison.
- 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?
The gang enhancement under PC 186.22b requires the prosecutor to prove that:
- 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 showing that:
- there was no underlying crime.
- there was no gang participation.
- the defendant 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 (such as 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.
Example: Rex – a member of the Bloods – was charged with committing robbery with the gang enhancement. When surveillance footage show that the robber was someone else, the entire case against Rex was dropped.
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.
Example: Rex – a former member of the Bloods – was charged with committing robbery with the gang enhancement. When detectives fail to find evidence that Rex is a current active participant of the gang, prosecutors drop the gang enhancement.
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.
Example: Rex – a member of the Bloods – was charged with committing robbery with the gang enhancement. Though when prosecutors learn that the Bloods had no idea that Rex committed the robbery, and that Rex had no intention to share the stolen property with the gang, the prosecutor dropped the gang enhancement.
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.
- Penal Code 186.22. The full language of the statute reads that: (a) A person who actively participates in a criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years. (b) (1) Except as provided in paragraphs (4) and (5), a person who is convicted of a felony committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in 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 the person 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. (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. (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.(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).
(3) The court shall select the sentence enhancement that, 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.
(4) A person who is convicted of a felony enumerated in this paragraph committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in 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.
(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.
(5) Except as provided in paragraph (4), a 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.
(c) If the court grants probation or suspends the execution of sentence imposed upon the defendant for a violation of subdivision (a), or in cases involving a true finding of the enhancement enumerated in subdivision (b), the court shall require that the defendant serve a minimum of 180 days in a county jail as a condition thereof.
(d) A person who is convicted of a public offense, punishable as a felony or a misdemeanor, that is committed for the benefit of, at the direction of, or in association with, a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members, shall be punished by imprisonment in a county jail not to exceed one year, or by imprisonment in a state prison for one, two, or three years, provided that a 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 the person 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.
(e) (1) 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 of the prior offense and within three years of the date the current offense is alleged to have been committed, the offenses were committed on separate occasions or by two or more members, the offenses commonly benefited a criminal street gang, and the common benefit of the offense is more than reputational:
(A) Assault with a deadly weapon or by means of force likely to produce great bodily injury, as defined in Section 245.
(B) Robbery, as defined in Chapter 4 (commencing with Section 211) of Title 8.
(C) Unlawful homicide or manslaughter, as defined in Chapter 1 (commencing with Section 187) of Title 8.
(D) The sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture a controlled substance as defined in Section 11007 of the Health and Safety Code.
(E) Shooting at an inhabited dwelling or occupied motor vehicle, as defined in Section 246.
(F) Discharging or permitting the discharge of a firearm from a motor vehicle, as defined in subdivisions (a) and (b) of Section 12034 until January 1, 2012, and, on or after that date, subdivisions (a) and (b) of Section 26100.
(G) Arson, as defined in Chapter 1 (commencing with Section 450) of Title 13.
(H) The intimidation of witnesses and victims, as defined in Section 136.1.
(I) Grand theft, as defined in subdivision (a) or (c) of Section 487.
(J) Grand theft of any firearm, vehicle, trailer, or vessel.
(K) Burglary, as defined in Section 459.
(L) Rape, as defined in Section 261.
(M) Money laundering, as defined in Section 186.10.
(N) Kidnapping, as defined in Section 207.
(O) Mayhem, as defined in Section 203.
(P) Aggravated mayhem, as defined in Section 205.
(Q) Torture, as defined in Section 206.
(R) Felony extortion, as defined in Sections 518 and 520.
(S) Carjacking, as defined in Section 215.
(T) The sale, delivery, or transfer of a firearm, as defined in Section 12072 until January 1, 2012, and, on or after that date, Article 1 (commencing with Section 27500) of Chapter 4 of Division 6 of Title 4 of Part 6.
(U) 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 until January 1, 2012, and, on or after that date, Section 29610.
(V) Threats to commit crimes resulting in death or great bodily injury, as defined in Section 422.
(W) Theft and unlawful taking or driving of a vehicle, as defined in Section 10851 of the Vehicle Code.
(X) Prohibited possession of a firearm in violation of Section 12021 until January 1, 2012, and on or after that date, Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.
(Y) Carrying a concealed firearm in violation of Section 12025 until January 1, 2012, and, on or after that date, Section 25400.
(Z) Carrying a loaded firearm in violation of Section 12031 until January 1, 2012, and, on or after that date, Section 25850.
(2) The currently charged offense shall not be used to establish the pattern of criminal gang activity.
(f) As used in this chapter, “criminal street gang” means an ongoing, organized 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 subdivision (e), having a common name or common identifying sign or symbol, and whose members collectively engage in, or have engaged in, a pattern of criminal gang activity.
(g) As used in this chapter, to benefit, promote, further, or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.
(h) 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.
(i) Notwithstanding any other law, for each person committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities for a conviction pursuant to subdivision (a) or (b) of this section, the offense shall be deemed one for which the state shall pay the rate of 100 percent of the per capita institutional cost of the Department of Corrections and Rehabilitation, Division of Juvenile Facilities, pursuant to former Section 912.5 of the Welfare and Institutions Code.
(j) 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 their 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.
(k) This section shall remain in effect only until January 1, 2023, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2023, deletes or extends that date.
(Amended (as amended by Stats. 2017, Ch. 561, Sec. 178) by Stats. 2021, Ch. 699, Sec. 3. (AB 333) Effective January 1, 2022. Repealed as of January 1, 2023, by its own provisions. See later operative version, as amended by Sec. 4 of Stats. 2021, Ch. 699.) See also 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.