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Gang Sentencing Enhancement in California – Penal Code 186.22 PC

Posted by Philip Israels | Jan 30, 2021 | 0 Comments

California Penal Code 186.22 PC, gang enhancement laws, says that anyone who willfully participates in gang activities or joins other members while carrying out a crime could be face additional prison time if convicted.

Gang Sentencing Enhancement in California – Penal Code 186.22 PC

PC 186.22 state that anyone who participates in a gang can face an enhanced sentence.

A criminal street gang is described as any group of 3 or more people who have a common name that participate in a pattern of committing crimes.

Penal Code 186.22 PC, gang sentencing enhancement, is known as the Street Terrorism Enforcement and Prevention Act, simply called the STEP Act.

This statute gives prosecutors a sentencing enhancement if they are able to prove the underlying criminal activity was part of street gang participation.  However, in order to convict you of the gang enhancement, they will have to prove:

  • you actively participated in a criminal street gang, and
  • knew the members take part in a pattern of gang activity, and
  • you willfully assisted with their criminal acts.

What is “Active Participation” in a Gang?

One of the primary factors in a PC 186.22 gang enhancement is the issue of “active participation.” It means you take part in gang activity in more than a passive manner.

In other words, you are taking part in criminal acts related to the gang, even if it's just part time.

Example of active gang participation 

You don't have to be a gang leader, or even an active gang member to face a PC 186.22 gang sentencing enhancement.

For example, let's say police arrest someone for committing robbery. Another officer recognizes the suspect as someone involved in prior incidents with known local gang members.

When questioned, the suspect tells police he is not an active gang member, but occasionally hangs out with the gang. The current robbery for which he was just arrested is similar to prior robbery crimes committed by the same street gang he hangs out with.

Due to the fact he admitted to hanging out with the gang, and the similarities between his PC 211 robbery arrest and the street gang activity on robberies, he could be considered an active gang participant.

To give readers a better understanding of California's gang sentencing enhancement law, our Los Angeles criminal defense lawyers are providing a review below.

What is a Pattern of Criminal Gang Activity?

As stated, Penal Code Section 186.22 PC defines a criminal street gang as any group or organization with 3 or more people that have a common name or an identifying symbol.

Also, one of their primary activities is to commit certain California crimes, and their members engage in a pattern of criminal gang activity. The definition of a “pattern of criminal activity” means:

  • commit 2 or more crimes on the specific list;
  • on 2 or more separate occasions by 2 or more people;
  • within a 3-year period of each other, and
  • prosecutor must prove the crimes were gang related.

What are the List of Crimes Establishing a Pattern of Gang Activity?

Health and Safety Code 11351 HS – drug sales,

California Penal Code 215 - Carjacking

PC 215 carjacking is on the list of crimes that establish a pattern of gang activity.

Health and Safety Code 11352 HS – drug transportation,

Health and Safety Code 11379.6 HS – drug manufacturing,

Penal Code 245(a)(1) PC – assault with a deadly weapon,

Penal Code 245(a)(2) – assault with a firearm,

Penal Code 246 PC – drive by shooting,

Penal Code 211 PC – robbery,

Penal Code 213 PC – home invasion robbery,

Penal Code 215 PC – carjacking,

Penal Code 459 PC – burglary,

Penal Code 187 PC – murder,

Penal Code 422 PC – criminal threats,

Penal Code 136.1 PC – witness intimidation,

Penal Code 518 PC – extortion,

Penal Code 261 PC – rape.

In order to prove that you “promoted, assisted, or furthered” a crime by a gang, the prosecutor must show you:

  • directly committed a felony crime under California law, or
  • at least aided and abetted a felony offense,
  • with other gang members.

PC 186.22 can become complex and confusing, which is why you should consult with a criminal lawyer for more information.

What are the Penalties for PC 186.22 Participating in a Gang?

Penal Code 186.22(a) PC, participating in a gang, is a California “wobbler,” which means the prosecutor has the discretion to file either a misdemeanor or a felony case.

If convicted of a misdemeanor offense, the penalties include:

  • up to 1 year in county jail, and
  • a fine up to $1,000.

If convicted of gang participation as a felony offense, the penalties include:

  • 16 months, 2 or 3 years in a California state prison, and
  • a fine up to $10,000.

Enhanced sentence

Under PC 186.22(b), you can receive an enhanced sentence if the prosecutor can prove all the elements of the enhancement:

  • You committed, or attempted, to commit a crime for the benefit or association with a gang, or direction from the gang;
  • When the crime was committed, your intent was to assist or promote criminal activity by the gang members.

As stated, you don't have to be an active gang member when the crime was committed to receive an enhanced sentence.

Penal Code 186.22 PC Gang Sentencing Enhancements

The severity of the gang sentencing enhancement depends on the type of underlying crime. If you are convicted of misdemeanor, you could face:

  • up to 1 year in county jail, and
  • you must serve at least 180 days in jail,
  • a period of probation.
Penal Code 186.22 PC Gang Sentencing Enhancements

If convicted and gang enhancement applies, you can receive an additional 4 years in prison.

If you are convicted of a felony and the street gang enhancement applies, you will receive additional time of 2, 3, or 4 years in a California state prison.

For a serious felony case, the additional time in a state prison will be 5 years. The serious felonies include assault with a deadly weapon by a prison inmate or against a peace officer, PC 246 shooting at an inhabited dwelling or occupied car, among others.

Violent felony 

For a violent felony case, the additional time in state prison will be 10 years. The violent California felonies include PC 187 murder, any felony crime that inflicted a great bodily injury, certain sex crimes, and PC 203 and PC 205 mayhem laws.

Specific felonies 

For other specific felony cases, the additional time in state prison is 15 years. The specific California felonies include PC 213 home invasion robbery, drive by shooting causing death or serious bodily injury.

Other specific felonies would result in 7 years to life in a state prison, including PC 518 extortion by force or fear, and PC 136.1 threatening a witness.

If your underlying felony conviction is punishable by life in prison, you will receive a life prison term and won't earn any credits towards your parole eligibility until you have served at least 15 years.

Other sentencing considerations reviewed by the judge include whether the offense occurred on school grounds or within a certain distance from a school zone.

The related sentencing enhancements to Penal Code 186.22 PC include:

  • Penal Code 12022 PC – personal use of a gun
  • Penal Code 1200.53 PC – “10-20-life use a gun and you're done” law

How Can I Fight a PC 186.22 Gang Enhancement?

Our Los Angeles criminal attorneys can use a wide range of defenses in order to challenge Penal Code 186.22 PC gang sentencing enhancements.

Fighting the underlying felony offense 

Unless you are convicted of the underlying felony crime you were charged with, you can't receive a gang enhancement. Thus, we will use effective strategies to persuade the prosecutor they can't prove their case against and reduce dismiss the charges.

You don't have any gang affiliation

How Can I Fight a PC 186.22 Gang Enhancement?

Contact the criminal lawyers at Cron, Israels & Stark to learn how we can help you.

Recall that the prosecutor must be able to prove you have some type of gang affiliation. We might be able to make an argument you have never been an active participant in gang activity.

You were not acting for the benefit of a gang

Again, recall that the prosecutor must prove you acted on behalf of the gang in order to allege a Penal Code 186.22 PC gang sentencing enhancement. We might be able to find weaknesses in the prosecutor's evidence that you were acting for the benefit of the gang.

Cron, Israels & Stark is a top-ranked criminal defense law firm that represents people in all Southern California courts, including LA County, Orange County, Santa Barbara County, Long Beach, Anaheim, Ventura County, Hollywood, Torrance, Riverside, and San Bernardino.

We are located at 11755 Wilshire Blvd, 15th Floor, Los Angeles, CA 90025. We also have an office at 401 Wilshire Blvd #1200, Santa Monica, CA 90401.

Contact our office for a free case consultation at (424) 372-3112.

About the Author

Philip Israels

Phil Israels was raised in California's Central Valley where he still has family. After graduating from the University of California at Berkeley where he was a member for Zeta Beta Tau fraternity and studied Economics, he continued his education...

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