Penal Code 186.22 PC – California “Gang Sentencing” Enhancement

Updated December 9, 2020

Penal Code 186.22 PC is the California statute that makes it a crime to actively participate in a criminal street gang. This section makes gang activity an offense in itself, and also a sentencing enhancement that adds additional prison time for crimes committed in furtherance of a criminal gang.

Penal Code 186.22(a) PC – the crime of participation in a gang

This part of the law makes it a crime to participate in a street gang and assist in any felony criminal conduct by the gang’s members.

The penalties for participation in a gang, in violation of Penal Code 186.22(a) PC, can include one (1) year in county jail . . . or a California felony sentence of sixteen (16) months, two (2) years or three (3) years in state prison.¹

Penal Code 186.22(b) PC – the gang sentencing enhancement.

This part of the law provides 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 s/he receives for the underlying felony.²

Depending on the circumstances of the offense, Penal Code 186.22(b) PC could mean an additional two (2) to fifteen (15) years, or even twenty-five (25)-years-to-life, in prison…even if you’re not a gang member, and even if you aren’t the individual who was most directly responsible for committing the underlying felony!³

So, as you can see, California law, through the STEP Act, punishes gang members…and those who associate with gang members…much more harshly than people who have no gang ties.

Examples

Here are some examples of situations in which the California street gang sentencing enhancement law might apply:

• Charles is a member of a street gang that engages in drug trafficking.  He is arrested and charged with possession of a controlled substance for sale.  And he is also charged with Penal Code 186.22(a) PC  — the California crime of participation in a gang — which increases his total potential sentence.
• Nicole is not a gang member, but her boyfriend Raul is.  One day she helps Raul threaten someone who owes money to the gang — thus committing the California crime of extortion. Because she acted for the benefit of a gang — even though she is not a gang member — Nicole may face an additional sentence of up to ten (10) years on top of her sentence for committing extortion.⁴

Legal defenses

But just because the prosecution charges you with a street gang sentencing enhancement doesn’t mean it will stick. A good California criminal defense attorney knows this and may be able to help make sure that it doesn’t.

Potentially helpful legal defenses against a Penal Code 186.22 PC charge include:

• You didn’t commit the underlying felony;
• You are not an “active participant” in a gang;
• You weren’t acting for the benefit of a gang;
• The prosecutor is seeking to apply the gang sentencing enhancement in an illegal way; and/or
• Imposing the gang sentencing enhancement would go against “the interests of justice.”

Note that Los Angeles County prosecutors are no longer enhancing sentences based on gangs connections.⁵

Below, our California criminal defense attorneys address the following:

• 1. How does California law define “participation in a street gang”?
  • 1.1. Penalties for the crime of “participation in a gang”
• 2. What is the sentencing enhancement under 186.22 PC?
  • 2.1. “Generic” felonies
  • 2.2. “Serious” felonies
  • 2.3. “Violent” felonies
  • 2.4. Specific felonies
  • 2.5. Misdemeanors
  • 2.6. Other sentencing considerations
• 3. How does 186.22 relate to other sentencing enhancements?
  • 3.1. Personal use of a gun
  • 3.2. California’s “10-20-life” law
• 4. What are the best defense strategies to use in court?
• 5. How do California and federal gang laws compare?

1. How does California law define “participation in a street gang”?

Penal Code 186.22(a) PC sets out the legal definition of the California crime of “participation in a gang.”⁶

In order to convict you of the offense of “participation in a street gang” under the STEP Act, a California prosecutor must prove the following three facts (otherwise known as “elements of the crime”):

1. You “actively participated” in a criminal street gang;
2. You knew that the gang’s members engaged in a pattern of criminal gang activity; AND
3. You willfully assisted, furthered, or promoted felonious (felony) criminal conduct by gang members.⁷

In order to help you better understand the legal definition of participation in a gang under Penal Code 186.22(a) PC, we will expand on some of these terms.

“Actively participated”

Under California’s gang enhancement law, you are considered to have “actively participated” in gang activities if you participated in those activities in a way that is not merely passive, or in name only. You can be considered to have been an active participant in a gang even if

• • you didn’t devote all or a substantial part of your time to the gang,

• you weren’t a leader of the gang, and
• you weren’t even an active member of the gang.⁸

Example: Juan is arrested for committing an armed California robbery (a California felony).

Police recognize Juan as someone they have frequently seen associating with known members of a local street gang. Juan has also admitted to police that he “kicks back” with the gang sometimes — even though he is not a member. Also, the robbery Juan committed resembles other robberies members of that gang have committed in the neighborhood.

Because of this, Juan is considered to have actively participated in the gang. He is convicted of Penal Code 186.22(a) PC as well as robbery.⁹

“Criminal street gang”

A “criminal street gang” is defined as any organization or group of three (3) or more people that

1. has a common name or identifying sign or symbol,
2. has, as one of its primary activities, the commission of one of a long list of California criminal offenses, and
3. whose members have engaged in a “pattern of criminal gang activity”…either alone or together.¹⁰

The definition of a “pattern of criminal gang activity” in California’s gang sentencing enhancement law is extremely complicated.¹¹ But, put very simply, it means

• the commission of two (2) or more crimes from a specific list,
• on two (2) or more separate occasions or by two (2) or more people,
• within three (3) years of each other, and
• with at least one crime committed after September 1988.¹²

And though it may seem odd, it isn’t necessary for the prosecution to prove that these offenses were even gang-related.¹³

The list of criminal offenses that can establish a “pattern of criminal gang activity” . . . and thus that a group is a “criminal street gang” . . . is quite long.  It includes such common offenses as:

• Robbery,
• Numerous drug offenses, including transportation and sale, possession for sale, and manufacture of drugs,
• Drive-by shootings,
• Vandalism, but only if it is chargeable as a felony,
• Assault with a deadly weapon, and
• Murder.¹⁴

Example: A group of teenage boys from a neighborhood called Hidden Woods form a group that they call the HW Taggers. They come up with an identifying logo and spray-paint this logo all over nearby neighborhoods — thus committing the crime of California vandalism — but don’t engage in any other criminal activity.

The damage done by the HW Taggers’ graffiti turns out to fairly cheap to repair — which means that they have only committed misdemeanor vandalism.¹⁵ Because only felony vandalism counts to establish a pattern of criminal gang activity, the HW Taggers do not quality as a criminal street gang.

“Assisted, furthered or promoted” gang criminal activity

In order to prove that you “assisted, furthered or promoted” felony criminal conduct by a gang, the prosecutor must prove that you either

1. directly and actively committed a felony in California law, or
2. aided and abetted a felony.¹⁶

In addition, in order for you to be convicted of the crime of “participation in a gang” under Penal Code 186.22(a) PC, it must be true that you committed…or aided and abetted…a felony with other gang members.  If you commit a felony on your own, you cannot be convicted under this section of California’s gang enhancement law.¹⁷

(However, even if you acted alone, you may still be subject to the criminal street gang sentencing enhancement under Penal Code 186.22(b) PC…which we discuss further in Section 2 below¹⁸.

Example: Joe is a member of a well-known gang. One night he commits an attempted robbery by himself. Members of his gang regularly commit robberies in order to intimidate other members of the community.

Joe may be charged with attempted robbery and may receive a gang sentencing enhancement…but he is NOT guilty of the separate crime of “participation in a gang” for this robbery. This is because he acted alone, rather than together with other gang members.¹⁹

1.1. Penalties for the crime of “participation in a gang”

The offense of participation in a gang under Penal Code 186.22(a) PC is a wobbler in California law. This means that the prosecutor may choose to try it as either a misdemeanor or a felony.²⁰

The maximum sentence if you are convicted of Penal Code 186.22(a) PC as a misdemeanor is one (1) year in county jail. You may also receive a fine of up to one thousand dollars ($1,000).²¹

If you are convicted of participation in a gang as a felony, you may face sixteen (16) months, two (2) years, or three (3) years in the California State Prison.²² You may also receive a fine of up to ten thousand dollars ($10,000).²³

2. What is the sentencing enhancement under 186.22 PC?

Penal Code 186.22(b) PC sets forth the actual California criminal gang sentencing enhancement.²⁴

The way the street gang sentencing enhancement under the STEP Act works is this: if you are convicted of a California crime, you will receive an enhanced sentence . . . ASSUMING the prosecutor can prove all of the “elements” of the sentencing enhancement.

These elements are:

1. You committed . . . or attempted . . . the crime for the benefit of, at the direction of, or in association with a criminal street gang; and
2. When you committed the crime, you intended to assist, further, or promote criminal conduct by members of the gang.²⁵

Of course, you also must be convicted of the underlying crime . . . which means the prosecutor must prove all the elements of that crime as well.²⁶

Importantly, there is no requirement that you be an “active participant” in a gang at the time when you committed the crime.²⁷

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 police officer. When the officer attempts to detain them, Ramon and his friends begin beating him…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 doesn’t matter that he wasn’t a current active member of the Norteno gang, because the prosecutor proves that he committed the crime in order to assist his friends—who are gang members—in their criminal conduct.

How much will the criminal street gang sentencing enhancement increase your sentence for a particular crime? That depends on what the underlying crime is.

Note that PC 186.22 no longer applies to criminal cases in Los Angeles County. People sentenced pursuant to a gang enhancement there may be eligible for a reduction through resentencing.²⁸

2.1. “Generic” felonies

The general rule is that…if you are convicted of a felony and the STEP Act gang enhancement applies . . . you will receive an additional prison term of two (2), three (3), or four (4) years.²⁹

This term is served in addition and consecutive to the penalty you receive for the underlying felony (as well as any additional charges).³⁰

However, there are numerous exceptions to this general rule.

2.2. “Serious” felonies

If the underlying felony to which the Penal Code 186.22(b) enhancement applies is a so-called “serious” felony, the additional prison term will be five (5) years.³¹

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,
• assault with a deadly weapon by a prison 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.³²

2.3. “Violent” felonies

If the underlying felony to which the Penal Code 186.22(b) enhancement applies is a so-called “violent” felony, committed in connection with a street gang . . . then the additional prison term will be ten (10) years.³³

The list of crimes that count as “violent” felonies in California is also long—well over 20. 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, and
• specific California sex crimes.³⁴

2.4. Specific felonies

Finally, Penal Code 186.22(b) PC sets out a few specific felonies that . . . if committed with the intent to assist or promote a gang . . . will lead to an even longer gang sentencing enhancement.

If the underlying felony that you are convicted of is

• Penal Code 213 PC home invasion robbery,
• Penal Code 215 PC California carjacking,
• a felony violation of Penal Code 246 PC, California’s law against shooting at an inhabited dwelling or occupied car, 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,

then you face an additional fifteen (15) years to life in the California state prison.³⁵

If you are convicted of either

• Penal Code 518 PC extortion committed by force or fear, or
• Penal Code 136.1 PC dissuading a witness,

then you face seven (7) years to life in the state prison.³⁶

And, finally, if your underlying conviction is for a felony that is punishable by life imprisonment, you will be sentenced to a life term.  And in this case, you will not earn credit towards your California parole eligibility until you have served a minimum of fifteen (15) years.³⁷

2.5. Misdemeanors

Penal Code 186.22(d) PC provides one more way that criminal gang involvement can increase your sentence for a particular crime.

This part of California’s gang enhancement law allows the prosecution to turn any misdemeanor crime into a felony . . . if the misdemeanor is committed:

1. for the benefit of, at the direction of, or in association with any criminal street gang, and
2. with the specific intent to promote, further, or assist in criminal conduct by gang members.³⁸

This means that . . . instead of the normal maximum misdemeanor sentence of one (1) year in county jail . . . you may face one (1), two (2) or three (3) years in state prison.³⁹

Example: Tony waves around a gun in front of a rival gang member and calls out the name of a gang he belongs to as he does so.

He is arrested for violating Penal Code 417 PC, California’s “brandishing a weapon” law – ordinarily a misdemeanor.  But prosecutors may be able to charge Tony with Penal Code 417 PC as a felony because he committed the offense for the benefit of his gang.

However, if prosecutors elect this option, they are not allowed to then take the “new” felony and add one of the enhancements under Penal Code 186.22(b) PC.⁴⁰

In other words, the sentence for a felony that has been converted from a misdemeanor cannot also include the normal street gang sentencing enhancement. California courts have recognized that that would be far too harsh a penalty.⁴¹

2.6. Other sentencing considerations

Offense took place in a school zone

In addition to the gang sentencing enhancement calculations described above, under the STEP Act, judges will also look at whether the underlying offense took place

1. in a “school zone” (that is, on the campus of … or within one thousand (1,000) feet of . . . a public or private school),
2. during hours when the school was in session or minors were on the grounds.⁴²

If the offense did take place in a school zone, that will be an “aggravating circumstance” that the judge may take into consideration when determining the length of your sentence.⁴³ In other words, that could lead to you receiving a sentence on the higher end of the range.

Striking the gang enhancement in the interests of justice

Under Penal Code 186.22 PC, California judges may . . . at their discretion . . . strike the gang enhancement altogether . . . IF a skilled California criminal defense lawyer can persuade the judge that it is “in the interests of justice” to do so.⁴⁴

This is supposed to happen only in unusual cases…but with the help of a good lawyer, you may be able to convince the judge that yours is just such an unusual case.

Multiple gang enhancements

Generally speaking, California law only allows an individual to suffer one sentencing enhancement for a single criminal act…even if that criminal act results in multiple charges.⁴⁵

However, if a defendant commits several criminal acts that

1. involve multiple victims, and
2. are separated by time and distance,

then s/he may face criminal charges for both acts…and the criminal street gang sentencing enhancement may apply to both.⁴⁶

Example: Arthur is a gang member. One night, he and several other members of his gang rob a man in his apartment. They then drive to another apartment building and rob a second man in his unit. The jury determines that both robberies were committed for the benefit of the gang.

Because the two robberies had different victims . . . and were separated by time and distance . . . Arthur may be convicted of and serve time for both. AND he will receive a separate STEP Act sentencing enhancement for each robbery.⁴⁷

3. How does 186.22 relate to other sentencing enhancements?

There are two other common California sentencing enhancements that may be charged in connection with . . . or instead of . . . the California criminal street gang sentencing enhancement. These are

1. California’s enhancement for personal use of a gun, and
2. California’s “10-20-life” law.

3.1. Personal use of a gun

Penal Code 12022 and 12022.5 PC set forth California’s sentencing enhancements for the personal use of a gun.

Penal Code 12022 PC adds an additional one (1) year sentence enhancement if any principal is armed with a gun during the commission of a felony .⁴⁸ This means that even if you aren’t personally armed…but someone else involved in the felony is…both of you could nevertheless face this enhancement.

Penal Code 12022.5 PC adds a three (3), four (4), or ten (10) year additional and consecutive sentence if you personally use a gun during the commission of a felony.⁴⁹

In either case, California prosecutors may choose to argue that you should receive this sentence enhancement in place of the STEP Act (criminal gang) sentence enhancement.

3.2. California’s “10-20-life” law

The second enhancement that frequently gets charged in connection with California’s gang sentencing enhancement 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 certain specific felonies subjects you to a ten (10)-year prison sentence . . . in addition and consecutive to the penalty for the underlying felony;
• personally firing a gun subjects you to an additional twenty (20) years; and
• personally firing a gun and causing great bodily injury or death to another person (other than an accomplice in the felony) subjects you to an additional twenty-five (25) years to life in prison.⁵⁰

The specific felonies that can trigger the “10-20-life” law include things like:

• Murder,
• Robbery,
• Carjacking, and
• Kidnapping.⁵¹

There are two main ways in which the “10-20-life” law interacts with Penal Code 186.22(b), California’s gang sentencing enhancement.

1. First, if you personally use or discharge a gun during one of the specified felonies…and you commit that felony for the benefit of a gang . . . , you may suffer an enhancement under both Penal Code 186.22(b) and California’s “10-20-life” law.⁵²
2. Second, if you are a principal in one of the specified felonies, committed for the benefit of the gang . . . and another principal (not you personally) uses or discharges a gun during the felony . . . you may receive a sentencing enhancement under California’s “10-20-life law” . . . even though that law normally applies only to defendants who personally used a gun.However, you may not receive both the gun sentence enhancement and the gang sentence enhancement if you did not personally use or discharge a gun.⁵³

Example: Keith and Gary are gang members. They commit an armed robbery together for the benefit of their gang. During the robbery, Keith fires a gun.

Because Keith personally discharged the gun, he may receive both a Penal Code 186.22(b) gang sentencing enhancement and a “10-20-life” firearm enhancement.

Gary didn’t personally fire a gun. But he did participate in the robbery for the benefit of the gang, and another principal in the robbery did fire a gun. So Gary may receive a 20-year firearm enhancement (but not a gang enhancement as well).

If this sounds confusing, that’s because it is. This is just one reason why it is critical to consult with a criminal defense attorney who has a thorough understanding of both California’s firearm laws and California’s gang laws.

As Oakland criminal defense attorney Neil Shouse⁵⁴ explains:

“California gun laws are complex.  And California gang sentencing laws are even more so.  A lawyer who has mastered these laws immediately recognizes when an overzealous…or, even worse, uneducated . . . prosecutor is attempting to impose an illegal sentencing enhancement.  And, just as importantly, we know how to prove our position to the court.”

4. What are the best defense strategies to use in court?

A California criminal defense lawyer can use a number of common legal defenses to challenge STEP Act charges….either gang participation charges under Penal Code 186.22(a) PC, or the gang sentencing enhancement under Penal Code 186.22(b) PC.

These legal defenses include (but are not limited to):

Fighting the underlying felony charges

If you are not convicted of an underlying felony, you can’t receive a criminal street gang sentencing enhancement under Penal Code 186.22(b) PC.  In many cases, prosecutors may not have sufficient evidence to prove every element of the felony of which you are accused.

Proving that you are not an “active participant” in a gang

If you are charged with “participation in a gang” under Penal Code 186.22(a) PC, you cannot be convicted unless the prosecutor can prove that you are an “active participant” in the gang.⁵⁵

Particularly if you are not actually a full member of a gang, this can be a difficult allegation to prove. A good criminal defense lawyer can help find the holes in the prosecutor’s evidence that you actively participated in a criminal street gang.

You weren’t acting “for the benefit of a gang”

Similarly, you can’t receive the STEP Act sentencing enhancement under Penal Code 186.22(b) PC if the prosecutor cannot prove that you acted for the benefit of a gang . . . when you committed this particular felony. This is true even if you are an active member of the gang.⁵⁶

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 if he is convicted of the robbery, he should be able to beat the gang sentencing enhancement with the help of an experienced California gang crimes defense attorney . . .  and his ultimate sentence will likely be much shorter.

The prosecutor is trying to impose the gang sentencing enhancement illegally

It bears repeating that California’s gang laws, firearms law, and sentencing laws are very complex.  Sometimes even a well-meaning prosecutor 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 review each and every aspect of the charge to ensure that you are not being charged illegally or unfairly.

Imposing the gang sentence enhancement would be against the “interests of justice”

Even if a jury decides to impose the criminal street gang sentencing enhancement under Penal Code 186.22(b) PC, remember that the judge has the discretion to strike the sentencing enhancement in special cases . . . if the “interests of justice” demand it.⁵⁷

Though this happens only in rare cases, an increasing number of legal scholars and observers recognize that California’s criminal gang sentencing enhancement laws are unnecessarily harsh…and downright “unjust and ineffective” (as one scholarly article puts it).⁵⁸

Providing information about your job history, family contributions and obligations, and character might help persuade the judge to exercise that discretion instead of sentencing you under the STEP Act.

5. How do California and federal gang laws compare?

There are three federal statutes that make it a felony to commit or participate in serious federal… or state… crimes in order to further the interests of a criminal “enterprise” (which can include a gang), or to get into, or further your position in, a gang.

They are:

1. The Racketeer Influenced and Corrupt Organizations Act (“RICO”) 18 USC 1961-68;
2. The Violent Crimes in Aid of Racketeering Act “(VICAR”) 18 USC 1959; and
3. The Continuing Criminal Enterprise statute 21 USC 848.

Thus, the government often has a choice of whether to prosecute gang members under federal or state law.

In general, federal laws are only used to disrupt and destroy large, highly organized gangs that deal drugs or commit crimes of violence over a wide geographic area, or when local law enforcement officials do not have the resources to investigate and prosecute cases in which the federal government has a significant interest.

There is also a penalty enhancement statute — the Criminal Street Gangs statute 18 USC 521 — that can in certain circumstances can add up to 10 years to the sentence of gang members convicted of any serious crime in federal court.

Differences between federal and California gang crimes

The definition of a criminal “enterprise” under federal law is slightly different from the definition of a “street gang” under California Penal Code 186.22(b) PC.  The underlying crimes that count as predicate acts are slightly different as well.

For practical purposes, however, most organized gangs that deal drugs or commit violent crimes will qualify as enterprises under federal law, if their activities in any way affect interstate or foreign commerce.

And the interstate commerce requirement is easily met — selling drugs that come from another country or using guns manufactured in another state is usually enough.

But perhaps the biggest difference between being charged in a federal court instead of a California state court is that there is no parole under the federal system.

If you are convicted of gang-related crime in federal court, you will serve your full sentence.

Thus, the government may use the threat of federal prosecution in order to try to get you to plead guilty to crimes under California law.

18 USC 1961-68, the Racketeer Influenced and Corrupt Organizations Act (“RICO”)

Under RICO, you can be punished if within a 10-year period you commit, or conspire to commit, two or more related crimes (“predicate acts”) from a list of 36 specified state and/or federal crimes, in furtherance of the activities of a criminal “enterprise” (which can include a street gang).

Predicate acts under RICO include (but are not limited to):

• murder;
• kidnapping;
• gambling;
• arson;
• robbery;
• bribery;
• obstruction of justice;
• obstruction of criminal investigations;
• extortion; and
• drug trafficking.

Penalties for RICO violations can include a prison sentence of up to 20 years or, in some cases, life imprisonment, as well as forfeiture of profits from your illegal activities and a fine of up to $250,000.

18 USC 1959, the Violent Crimes in Aid of Racketeering Act “(VICAR”)

VICAR punishes those who commit a violent crime in order to be admitted into, or to bolster their position in, a criminal enterprise.

The predicate crimes under VICAR are:

• murder;
• kidnapping;
• maiming;
• assault with a dangerous weapon;
• assault resulting in serious bodily injury; and
• threatening to commit a crime of violence against any individual in violation of any state or federal law.

Penalties under VICAR can include prison sentences of up to 30 years (or for murder, life imprisonment or the death penalty), and fines of up to $250,000.

The Continuing Criminal Enterprise statute (“CCE” or “Kingpin statute”) 21 USC 848

The Continuing Criminal Enterprise statute makes it a crime to be a leader of a drug enterprise or to kill someone while engaging in, or avoiding arrest for, certain drug-related offenses.

Unlike RICO and VICAR, which target a wide range of criminal enterprises, CCE covers only major narcotics organizations.

Penalties under CCE include prison sentences of not less than 20 years (or for murder or ordering a murder, life imprisonment or the death penalty), as well as forfeiture of profits and fines of up to $4,000,000 for individuals and $10,000,000 for organizations.

There is no double jeopardy prohibition to punishment for violations of RICO, VICAR and/or CCE and for underlying crimes.

RICO, VICAR and CCE penalties are in addition to each other, as well as in addition to sentences and penalty enhancements for underlying crimes under applicable federal or state law.

Sentencing enhancements under 18 USC 521, the “Criminal Street Gangs” statute

Federal law also provides a penalty enhancement of up to 10 years for crimes committed by gang members who have been convicted within the last five years of a serious state or federal crime.

The definition of a gang is quite limited under 18 USC 521 – the gang must have at least five members and one its primary purposes must be to commit serious drug felonies or crimes of violence under federal law.

The law also requires that a prosecutor prove that you committed the crimes in furtherance of a gang’s criminal activities, or to maintain your position within a gang.

Since each of these requirements (other than the fact of a prior conviction) must be charged in the indictment, submitted to a jury, and proven beyond a reasonable doubt,  use of the federal penalty enhancement has proved limited.

Legal defenses to federal gang charges

Many of the same legal defenses to charges under California Penal Code 186.22 PC also apply to charges under federal gang laws.

Additional legal defenses may include:

• the gang doesn’t meet the legal definition of an “enterprise” under RICO/VICAR;
• the gang doesn’t meet the legal definition of a “continuing criminal enterprise” under CCE;
• the gang doesn’t meet the legal definition of a “criminal street gang” under the Criminal Street Gangs statute; and
• your convictions for the underlying offenses were expunged.

For a more detailed examination of federal gang laws and how they differ from California Penal Code 186.22 PC, visit our page A Comparison of California and Federal Gang Laws.

Call Us for Help…

If you or a loved one is charged with Penal Code 186.22 PC gang enhancement and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices and create attorney-client relationships in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

For more information on Nevada’s gang crime enhancement law, you may visit our page on Nevada’s gang crime enhancement law.

¿Habla español? Visite nuestro sitio Web en español sobre la ley de intensificación de sentencia para las pandillas criminales de California.

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