A gang enhancement is an additional prison sentence imposed on defendants who face a conviction for a felony offense committed to benefit or in association with a street gang. The gang enhancement law is addressed under California Penal Code 186.22(b) and is only triggered after a conviction for the underlying felony.

Being involved in the commission of a serious felony does not always mean you acted to aid a street gang. Unfortunately, some people are falsely accused of being gang members or aiding gang activity due to their race or the type of people with whom they associate. If you or a loved one faces criminal charges for a gang-related activity or faces gang enhancement following felony charges in Riverside, CA, you will benefit from the guidance of a knowledgeable criminal lawyer.

At Riverside Criminal Defense Attorney Law Firm, we understand what lies at stake if you are convicted of a felony with a gang enhancement. Our skilled attorneys will help you understand the nature of your charges and your defense options to ensure the best possible outcome for your case.

What is Gang Enhancement?

Gang violence is an epidemic that affects almost all societies today. To curb this epidemic in California, the state enacted the Street Terrorism Enforcement and Prevention Act. Under r this statute, any person who faces a conviction for a felony and is determined to have committed the offense for the benefit of a street gang will face a sentence enhancement. A gang enhancement under California PC 186.22 can double your prison sentence. 

While the STEP has helped reduce gang activity, it can cause innocent people to suffer undeservingly harsh penalties. STEP has two main components, including involvement in a street gang and committing crimes to benefit a gang. When introducing a gang enhancement in your felony criminal case. The prosecution must prove these  elements:

     1. You Committed or Attempted to Commit a Crime to Aid or in Association of a Street Gang

The first step in introducing a gang enhancement under California law is proving that you committed the underlying felony offense. The enhancement is only applicable following a conviction for a serious, violent, or specific felony under California law. Therefore, if you face charges for an offense like murder, the prosecution must prove all the elements of murder.

After proving that you are guilty of a felony offense, the prosecutor must further prove that the offense you are charged with was committed as a directive from a street gang or to aid gang activity. Under California PC 186.22, a street gang comprises three or more people who identify collectively and whose primary relationship is centered on criminal activity. Under this statute, patterns of gang activity involve:

  • Commission of more than one crime.
  • Involvement of crimes on multiple occasions.
  • Commission of multiple crimes within thirty-six months of each other .

Some of the crimes defined under this statute may include murder, robbery, assault with a deadly weapon, and drug crimes.

     2. You Acted with an Intent to Promote Assist or Further Gang Related Criminal Activity 

The second element that must be clear when introducing and imposing a gang enhancement is that your actions were fueled by promoting gang activity. You do not need to be an active gang member to promote your activities. Therefore, the prosecutor is only required to link the current felony offense with the gang or plan to enhance the gang.

How Does a Gang Enhancement Increase Your Sentence?

PC 186.22(b) sets out the STEP law, which addresses sentence enhancements for gang-related activity. As you receive a gang sentencing enhancement, the prosecutor must not establish that you were an active participant in a gang at the offense. California law does not stipulate a fixed timeframe by which your sentence must be increased. However, the enhancements vary depending on the type of offense with which you are charged. The following are different enhancements for criminal offenses under Penal Code 186.22(b):

Generic Felonies

If you are convicted for an offense where the STEP law applies, a gang enhancement will result in an additional jail or prison term of two to four years.

Serious Felonies

If the court convicts you of a serious felony in which STEP applies, you could receive an additional sentence of up to five years. The most common offenses categorized as serious felonies include assault with a deadly weapon, drug crimes, criminal threats, assault on a peace officer, and discharging a firearm into an occupied vehicle or home.

Violent Felonies

Under California law, violent felonies include mayhem, sex crimes, murder, or any other offense that results in serious bodily injury. Face a conviction for any of these offenses, and the prosecution successfully introduces a gang enhancement. You will face the penalties of your crime and an additional ten years for aiding gang activity.

Specific Felonies

California PC 186.22(b) sets out some specific felonies which, if a defendant commits them intending to promote gang-related activities, will result in a longer prison sentence. You could receive fifteen years for gang enhancement after a conviction for carjacking, robbery, or drive-by shooting. On the other hand, offenses like dissuading a witness or extortion will result in seven years in prison under PC 186.22.

Misdemeanor Offenses

Under California PC 186.22(d), the prosecution can convert your misdemeanor offense to a felony. This happens when the specific offense is committed to promote, benefit or further the interests of a gang. In this case, you will be sentenced to up to three years in prison instead of the one year jail time in county jail. Facing a felony conviction will pave the way to introduce gang enhancement.

Interests of Justice

In addition to enhancements imposed for various offenses, the judge has the discretion to introduce a gang enhancement if it serves justice. While this is rare, you will require the guidance of a skilled attorney to persuade the court that this action is not in the interest of justice.

Multiple Enhancements

California gang enhancement laws only require you to be subjected to one gang enhancement even when your offense results in multiple criminal charges. However, you will be charged for each offense when you commit multiple offenses that are distinct by nature or timing, and gang enhancement sentencing could be introduced for each. 

Defending Against Gang Enhancement Sentencing

The additional penalties imposed for gang enhancement are often more serious than the penalties for the underlying felony. Additionally, being associated with a street gang could ruin your personal and professional life. Therefore, if a prosecutor accuses you of being a gang member or committing a crime to enhance gang activity, you have a right to defend yourself. With the guidance of a skilled lawyer, you can employ the following defenses:

Fight the Underlying Felony

A gang enhancement is only applicable following a felony conviction under California law. Therefore, one of the most effective strategies against this enhancement is to fight the underlying charge. The prosecution needs to prove that you committed the alleged offense beyond a reasonable doubt. If you can fight the charges and avoid a guilty verdict, the gang enhancement will not apply to your case.

Argue that you did not commit the Crime to Enhance Gang Activity

Even when the prosecution can prove that you are currently or was once a member of a street gang, they must demonstrate that you committed the alleged felony to aid gang activity. If you can prove that you committed the felony offense for personal reasons, the gang enhancement is irrelevant to your case.

For example, if you rob a person because you need money for drugs, the prosecution may try to stick you up with a gang enhancement so you can serve a heftier prison sentence. Even when the court finds you guilty of robbery in this case, you can avoid the gang enhancement.

Argue that the Sentence is Against the Interests of Justice

The court allows a gang enhancement to stick in your felony conviction if it serves justice. Therefore, a judge can strike it off when it is against the interest of justice.

Challenge the Legality of the Enhancement

California law on street gangs is very complex. Sometimes, prosecutors fail to understand or overlook various statutes and institute inappropriate charges. Your criminal attorney must review all aspects of your case to ensure that the gang enhancement was introduced legally.

Gang Enhancement and Federal Gang Laws

USC 1959, 848, and 1961-68 make it a felony to participate, commission, or engage in crimes that promote criminal enterprises. Crimes committed to promote gang activity can either be at the state or federal level. However, the federal government focuses on destroying or disrupting well-established gangs that deal with drug crimes and other serious offenses like human trafficking. However, federal laws will apply in cases where the state government lacks the necessary resources to investigate and prosecute these offenses.

The most significant difference between federal and state gang enhancement is that a conviction in federal court requires you to serve your entire sentence. If you face a gang enhancement in state court, you can benefit from parole and see an early release.

Alternative Sentencing Enhancements in California

In addition to gang enhancement, other standard sentencing enhancements could apply to your case after a criminal conviction in California, Including:

Firearms Sentencing Enhancements

A firearm enhancement is the extra prison sentence you face for using a gun to commit a felony offense. The firearm sentencing enhancement is addressed in PC Sections 12021.55 to 12022.55, and it only applies when you face felony charges. A conviction with this enhancement will result in an additional and consecutive sentence. There are three ways through which this enhancement can be applied to your case:

  • You formally admit to the enhancement charge.
  • Accepting a plea deal that has the enhancement.
  • You are tried and found guilty of an offense that carries the enhancement.

The specific sentencing enhancements include:

     1. Having a Gun when Committing a Felony

You can receive a penalty enhancement under PC 12022 if you committed a felony and while doing so, you had a firearm. This gin enhancement will occur even when you do not use the gun. Therefore, if someone with whom you were committing the crime used or has=d a firearm, you will be subject to a one-year prison sentence and the penalty of the underlying crime.

If the felony charges you face are for carjacking or attempted carjacking, this enhancement results in a three-year additional prison sentence. For drug-related offenses that have a firearm enhancement, your penalty is increased by one year in state prison.

     2. Having Bullets that could Pierce through Armor

You will be liable for an enhancement under PC 12022.2 if you commit a felony while possessing a gun and have bullets capable of piercing through metal. Having both a gun and bullets that could go through armor will attract a sentence enhancement of up to ten years, with four years acting as the default. While the prosecution aims to obtain the harshest sentence, your criminal defense attorney can help present evidence that the enhancement is lower.

     3. Using a Gun to Commit a Sex Offense

If you use a firearm to commit a sex offense, you could suffer a penalty enhancement under California Penal Code 12202.3. If you are convicted for any of these offenses, and it is clear that you used a gun, you risk facing an additional sentence ranging from one to five years. If you use the gun against the victim, the enhancement may increase to ten years.

     4. Providing another Person with a Gun While Committing a Felony Offense

It is unlawful to give or attempt to give another person a gun for use to commit an offense in California. Under CPC 12022.4, anyone who faces a conviction for a felony and the prosecutor proves that they served another person with a gun will face a two to three-year penalty enhancement. In this case, it is crucial to know that the firearm you give to the person does not need to be functional. Additionally, you can face the enhancement for providing the firearm before or during the commission of the felony.

     5. Using a Firearm When Committing a Felony

Defendants who use a gun when committing a felony could face a firearm penalty enhancement under section 12022.5 of California law. Under this statute, utilizing a firearm could mean displaying it to threaten another person, hitting someone with it, or even discharging it. However, the enhancement will not apply to crimes that use a gun as one of the elements.

If you face a conviction under this law, the court could impose a maximum penalty enhancement of ten years. When you use the gun to commit a serious felony such as robbery, the enhancement could increase to twenty-five years in cases where a third party was injured.

Great Bodily Injury Enhancement

California Penal Code 12922.7 addresses the great bodily injury enhancement imposed when you commit a crime that causes serious injury to another person. Under this statute, great bodily injury is significant harm that is more than moderate. The great bodily injury must be physical and not involve emotional or financial harm. Whether or not the injury can suffice as a great bodily injury will depend on:

  • The severity of the injury.
  • The alleged injury needed immediate medical attention.
  • The injury caused severe physical pain to the victim.

Some of the examples of injuries that are classified under this enhancement include:

  • Broken bones.
  • Second degree burns and bruising that result from burns.
  • Swelling and severe dislocation of joints.
  • Vaginal bleeding or soreness that may result from rape and other violent sex crimes.
  • Gunshot wounds.
  • Loss of motor function.
  • Head injuries and concussions.

Offenses associated with a great bodily injury include domestic violence, elder abuse, battery, sex offenses, assault with a deadly weapon, and DUI causing injury.

Under California PC 12022.7, a conviction for a felony with great bodily injury enhancement will result in an additional three to six years in state prison, which is served together with the penalties of the underlying conviction. The specific amount of prison time varied from case to case:

  • Inflicting great bodily injury during domestic violence in results in a five years enhancement.
  • Causing a person to go into a coma as a result of the GBI attracts a penalty enhancement of six years.
  • Inflicting GBI on a person over seventy years will enhance your sentence by up to five years.
  • Inflicting GBI on a minor under five years will result in a six years penalty enhancement.

Difference between Serious and Great Bodily Injury

While most people use these terms as one, great bodily injury and serious bodily injury are used differently under California law. Great bodily injury is a sentence enhancement for various felony offenses. On the other hand, serious bodily injury is used in battery cases. If you cause a serious injury to someone during the commission of a battery, you will face charges for aggravated battery instead of simple battery. Under California law, serious bodily injury is less extreme compared to great bodily injury, and the damage done to the victim, in this case, is moderate.

California Hate Crime Enhancement

PC 422.75 is a typical hate crime statute that imposes an additional penalty when a person is convicted of a felony, and the felony is proven to be a hate crime. Often, most penalty enhancements are introduced by the prosecutor. However, the court will only accept it if the following is true about your case:

  1. You face a conviction for a felony. Like other penalty enhancements under California law, the court will only impose it if the prosecution proves your guilt for the underlying offense beyond a reasonable doubt.
  2. The crime for which you are convicted is a hate crime. A hate crime is any criminal act committed against a person based on their race, gender, nationality, disability, sexual orientation, and religion. Therefore, if the prosecutor can prove that your felony offense was motivated by the above factors, the court will impose this sentencing enhancement. 

Facing a conviction for a felony hate crime will attract a sentence enhancement of one to three years to be served in state prison. On the other hand, if you committed the offense with another person or aided the defendant, you could face two to four years. If there are no aggravating circumstances like using a firearm to commit the offense, the court could sentence you to felony probation instead of the enhancement. In this case, you will serve the prison sentence for the felony conviction and then serve your probation for the enhancement.

PC 422.7 is one of the common statutes which imposes additional penalties for misdemeanor hate crimes. If the prosecution proves that your misdemeanor is a hate crime, the prosecution can charge it as a wobbler. A wobbler is an offense that can be charged as either a felony or a misdemeanor.

Find an Experienced Criminal Attorney Near Me

California law addresses gang-related crimes in various ways. One of the common ones is imposing sentence enhancements for defendants who commit serious and violent felonies to aid or in connection to gang activity. Participation in a gang is a crime since the law penalizes a street gang member for committing a crime. Facing criminal charges with a gang enhancement can have a devastating outcome. In most cases, the additional prison time is served concurrently, meaning you will spend a significant amount of time behind bars.

If you are facing a gag-related offense or gang enhancement, it would be wise to enlist and retain the services of a skilled criminal lawyer. At Riverside Criminal Defense Attorney Law Firm, we have the knowledge and experience necessary to guide you through defending against your criminal charges and any additional gang enhancements. We serve clients seeking guidance and representation to battle criminal charges in Riverside, CA. Contact us today at 951-946-6366 to discuss more details of your case.