Gangs have been around, in various forms and to various degrees, since the birth of our country. Their influence and effects on the public have ebbed and flowed over time; drawing reactions to different degrees by government and law enforcement. In the 1980's, California saw a dramatic rise in violent crime attributed to street-level gangs, and took likewise dramatic steps to mitigate those crimes and their effects on the public.
In 1988, California enacted a law called the "California Street Terrorism Enforcement and Prevention Act," also known as the "STEP Act." The law was codified in California Penal Code sections 186.20 through 186.36. The primary part of the STEP Act is section 186.22, which does two things that severely punish gang members, or anyone associated with a gang, when a crime is committed by a gang or on their behalf.
First, subsection (a) of section 186.22 makes it a crime for any person to participate in an active capacity, in a gang, when that person knows that the gang is engaged in criminal activity, and that person does anything to assist, promote or further any conduct by gang members that constitutes a felony under California law. Violations under this subsection can be punished as either a misdemeanor or a felony; a type of crime known as a "wobbler."
Second, subsection (b) of section 186.22 provides that any person who is convicted of a felony which was committed in association with a gang, for the benefit of a gang, or at the direction of a gang will receive a mandatory sentence enhancement which can range from two additional years in prison to life in prison (with the possibility of parole.) The mandatory sentence enhancement imposed by section 186.22 must run consecutively, not concurrently (i.e., it begins after the sentence imposed for the underlying felony has already been served.) The length of the sentence enhancement depends on a number of factors, but generally speaking; the more serious the underlying felony, the longer the sentence enhancement.
What is a Gang Under the STEP Act?:
The term "gang" is a general one, and can have any number of meanings in different situations and in different contexts. Given that the punishments for gang activity under the STEP Act can be quite severe, it is important to know exactly what constitutes a "gang" for purposes of the law.
The specific term used by the law is "criminal street gang," which is defined in Penal Code sections 186.22(f) and 186.34(1). It defines a criminal street gang as "group," "organization" or "association" which has, as one of its primary functions, the commission of certain, specific crimes. Those specific crimes are:
- Manslaughter or homicide (e., the unlawful killing of a person);
- Drug crimes, including possession, manufacturing, offering to manufacture, selling and transportation of controlled substances;
- Shooting from a motor vehicle (a.k.a drive-by shooting);
- Shooting at an occupied motor vehicle or inhabited dwelling;
- Witness or victim tampering or intimidation;
- Felony extortion;
- Transfer, delivery or sales of firearms;
- Grand Theft;
- Money laundering;
- Mayhem, including aggravated mayhem;
- Felony vandalism;
- Possession of a concealed or illegal firearm;
- Threats of committing crimes that are capable of causing, or resulting in, great bodily injury or death; or
- Vehicle theft;
Additionally, in order to be considered as a "criminal street gang," the group, organization or association must have a common name, sign or symbol, and they engage, or have engaged, in a pattern of criminal activity which is definable. So long as they meet those criteria, they are considered a criminal street gang; whether or not they have any formal structure, rules or membership requirements.
Examples of Gang Crimes:
- Bobby is not in a gang, but he has a friend, Andre, who is a member of a gang that operates in the neighborhood. Bobby does his best to stay away from anything that could get him in trouble, but he also considers himself a loyal friend. One evening, Andre called Bobby and asked him if he could come over and help out with a problem. Bobby wasn't doing much at the time, so he said he would and went over to Andre's apartment. When he got there, Bobby found out that Andre wanted him to be a lookout while he and some other gang members went to a parking lot to "do something." Bobby told Andre that he didn't want to get involved, but after enduring a wave of peer pressure, Bobby agreed. The group went out and started breaking into cars, parked at a nearby lot. Bobby was standing on the street corner, keeping an eye out for anyone who might approach. After a few minutes, a patrol officer pulled up in his black-and-white patrol vehicle. The officer saw that Bobby was looking nervous, so he began asking him questions. Just then, the officer heard glass break in the parking lot, and when he shined his flashlight in that direction, all of the gang members scattered, leaving Bobby behind. More officers were called to the scene, and upon investigation, it was learned that several cars had been broken into. Bobby admitted that he was acting as a lookout for his friend Andre and a few of his fellow gang members. Bobby was then arrested, and charged with a violation of Penal Code section 186.22(a). Fortunately for Bobby, the lawyer he hired was able to convince the district attorney to charge the crime as a misdemeanor, which minimized his sentence.
- Cathy is generally a good, law-abiding citizen. However, her boyfriend, Oscar, is a well-known member of a local street gang that makes most of its money selling drugs. The gang maintains its control over its turf by beating or killing anyone else who tries to sell drugs in their territory. One day, a dealer from another local gang, who usually sells in the next town over, sets up shop in the area controlled by Oscar's gang. Oscar and a couple other gang members see this, and without hesitation, pull out their concealed weapons and shoot the dealer, killing him. When the police later investigate the murder, they focus in on Oscar as a suspect; bringing him in for questioning. Oscar denies that he was involved, and claims that he was with his girlfriend at the time. Before the police can question her, Oscar calls Cathy and tells her that he needs her to say that they were together at the time the murder was committed. Because Cathy loves her boyfriend, she agrees and when she is questioned by the police, Cathy claims that Oscar was with her at the time, and that he was not involved in the crime. Unfortunately for them, Oscar later brags about the murder at a party where a group of gang members are gathered. One of those members is actually an undercover police officer, and secretly recorded Oscar's admission. When the undercover officer finishes his assignment several months later, the secret recording was used to prosecute and convict Oscar of the murder. Cathy was also prosecuted for a violation of Penal Code section 32 (accessory after the fact.) Due to the severity of the underlying crime, Cathy was charged with a felony on the accessory after the fact charge.
- John is a high-ranking member in a motorcycle club, which is well-known to be a violent biker gang. One of the ways in which the gang makes its money is to hijack various types of shipments from tractor-trailers transporting goods on the highway. While John does not actively participate in the heists, he does plan them out and acts as the mastermind of the operations. After planning the latest heist, a group of gang members execute John's plan and rob a truck carrying electronics. They pull the driver out, and beat him severely. Before the gang can leave with the truck, several highway patrol officers arrive on the scene. A shootout ensues. One gang member is killed, and the rest are taken into custody. Under interrogation, two of the gang members in custody confess everything, including the fact that John masterminded the heist. John is prosecuted on multiple felony charges, and upon conviction receives a 10-year, violent felony, sentence enhancement under the STEP Act.
- Mick is a member of the same biker gang as John. He was not involved in the heist that resulted in John's arrest because he was on vacation in Hawaii at the time. Upon returning to California, Mick learns of the arrests of John and some of his fellow gang members. Not knowing that two of the gang members in custody had already confessed (as Mick believes that his fellow members would never betray the gang;) Mick hatches a plan to prevent the prosecutions from going forward. He identifies the victim who was driving the tractor-trailer that was robbed, tracks him down and threatens to kill him and his family if he testifies. What Mick didn't know was that the driver didn't have much in the way of family, and as a result of the beating he received, was too angry to be scared of Mick's threats. The driver contacted the police, and a meeting was arranged where the driver would attempt to get Mick to repeat his threats so they could be recorded on a wire he was wearing. This was successful, and Mick was later arrested, charged with witness tampering, and upon conviction received a 7-year sentence enhancement.
How Does a Prosecutor Prove a Violation of Penal Code Section 186.22(a)(participation in a street gang)?:
Because subsection (a) of Penal Code section 186.22 is a crime in and of itself (and not just a sentence enhancement for another crime,) a prosecutor is obligated prove the following elements beyond a reasonable doubt:
- The defendant actively participated in the activities of a criminal street gang; and
- The defendant knew that the members of the criminal street gang have engaged, or are engaging in, a pattern of gang activity, criminal in nature; and
- The defendant, in willful fashion, furthered, promoted or assisted in the commission of one or more felonies or attempted felonies.
Penalties for a Violation of Penal Code Section 186.22(a):
If a defendant is convicted of a violation of section 186.22(a) they will face the penalties for either misdemeanor or felony convictions, depending on how the prosecutor decides to charge the defendant.
If the defendant is charged with a misdemeanor, they can receive a sentence of up to a year in county jail, and three years of summary probation.
If the defendant is charged with a felony, then they face 16 months, 2 years or 3 years in a county jail or state prison, and 5 years of formal probation.
Sentence Enhancements Under Penal Code Section 186.22(b):
The most damaging aspect of the STEP Act is the mandatory sentence enhancements imposed on felony convictions, whenever a felony is committed for the benefit of, in association with or at the direction of a criminal street gang.
Generally speaking, a sentence enhancement is an additional period of prison time that is added to a sentence, due to the presence of one or more aggravating factors. In the case of enhancements under the STEP Act, the aggravating circumstance is that the crime was for the benefit of criminal street gangs, was committed at the direction of such a gang, or was done in association with a gang.
Typically, a sentence enhancement can run either consecutively or concurrently. If it runs concurrently, then the clock on the enhancement runs at the same time as the underlying prison sentence. This has the effect of shortening the overall time spent in prison. If a sentence enhancement runs consecutively, the clock will not start running until the sentence for the underlying crime is complete. In the case of the STEP Act, all sentence enhancements imposed under the law must run consecutively.
The length of a STEP Act sentence enhancement can vary significantly, depending on the nature of the underlying felony and its facts and circumstances. The shortest enhancement a defendant can receive is 2 years, while the longest enhancement that can be doled out is a life sentence, with a minimum of 15 years before a prisoner can be eligible for parole. Some of the potential, mandatory sentence enhancements are as follows, depending on the seriousness of the underlying charge:
- 2, 3 or 4 years for a non-violent, non-serious felony;
- 5 years for a serious felony;
- 7 years for extortion or witness tampering;
- 10 years for a violent felony; and
- 15 years for a home-invasion robbery or carjacking;
One of the most significant, and controversial, aspects of the STEP Act is that a person does not need to be a member of a street gang in order to receive a sentence enhancement under Penal Code section 168.22(b). All that is required is that the person committed a felony, and that felony was committed for the benefit of criminal street gangs, was committed at the direction of a gang, or was committed in association with one. This means that a person who is not a member of a gang, with no prior record of gang activity; can receive a massive, mandatory sentence enhancement merely because they associate with gang members or committed a crime at the direction of gang members.
Given that the penalties associated with the potential criminal count that can be imposed under Penal Code 186.22(a), and the potentially massive, consecutively-served, sentence enhancements that can be imposed under Penal Code section 186.22(b); it is important to know what defenses are available, and what can be argued to either avoid a conviction or sentence enhancement, or reduce the amount of jail or prison time a criminal defendant will face. There is no one-size-fits-all approach, as the facts of each case are different. That said, there are some defenses that are used more often than others in gang crime cases. A few of those are as follows:
- The Interests of Justice - There is little leeway in either the definitions contained in section 186.22, or the mandatory sentence enhancements imposed. There is, however, a significant amount of discretion placed with the judge presiding over the case. If the judge determines that the "interests of justice" are served by showing leniency on the defendant, the judge has the power to significantly reduce the penalties imposed by either granting probation or suspending the execution of the sentence. Typically, in order to persuade a judge to show leniency in the interests of justice, a defendant will show that despite their crime, they are an otherwise upstanding member of society, have strong community or family ties, have served their city, state or country, or have demonstrated other qualities that show strong character and a low likelihood of future offenses. However, even if a judge does decide to show leniency and suspends the sentence or grants probation; under Penal Code sections 186.22(c) and (d), the judge is required to sentence the defendant to a minimum of 180 days in county jail. In addition, the Judge must state on the record the mitigating factors that led her to impose the reduced sentence.
- No Active Participation - the misdemeanor or felony charge under Penal Code section 186.22(a) requires that a defendant actively participate in a street gang. Active participation is a less strict standard than membership in a gang, but it does have limits to its application. A defendant who regularly and freely associates with gang members, even though they are not a member themselves, can be deemed to actively participate in a street gang. However, a person who's association with gang members is only incidental to another, primary association may be able to defend against a charge on grounds that they do not actively participate in the gang. For example, if the defendant happens to be a part of a car club that just happens to include gang members; an experienced attorney may be persuasive in arguing that the defendant was actively participating in the car club (and only the car club,) which just happened to contain gang members.
- Reasonable Doubt - Like virtually every other crime a person can be charged with; the prosecutor must prove their case beyond a reasonable doubt in order to convict. If a defense attorney can raise a reasonable doubt as to one or more elements of a charge, the jury (or judge in the case of a bench trial) is obligated to acquit the defendant. It goes without saying that a judge cannot impose a sentence enhancement on a defendant who was acquitted. For the misdemeanor or felony charge under Penal Code section 186.22(a); that needle is a little more difficult to thread. A good defense attorney will need to show that either there is a doubt as to whether the defendant's actions in promoting, furthering or assisting the gang did not relate to a provable felony, or they will have to raise a reasonable doubt as to whether the defendant's actions constituted assistance, promotion or furtherance of what is, undoubtedly, a felony.
The facts and circumstances will always vary from case to case, so it is difficult to say what potential defenses may be available, or have the best chances of success in any particular case. That said, one of the few things that a defendant can generally rely on is that their chances of obtaining the best possible outcome will come from being represented by an experienced attorney who has a proven track record of defending against gang crime charges. A good attorney will usually be the best person to know what to defend against, and by what means.
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