California Gang Enhancements

California has the second-highest number of incarcerated individuals. In large part, this is due to the various sentencing enhancements contained in the California Penal Code. While there are over 100 CA sentencing enhancements on the books, one of the most common are gang enhancements under Cal. Penal Code § 186.22.

However, due to a growing body of research about the negative effects of incarceration—not just on the individual but on society as a whole—in recent years, lawmakers have begun to reduce the number of situations where California gang enhancements apply. That said, they remain one of the most commonly used enhancements. Thus, it is imperative for anyone charged with a gang-related crime to understand how gang enhancements work, when they apply, and the potential impact they can have on a sentence.

In California, gang enhancements refer to additional penalties that can be added to a person’s sentence if the prosecution can prove that the crime was committed in association with a criminal street gang. California’s gang enhancement is outlined in the California Penal Code, specifically under Section 186.22, which is part of the California Street Terrorism Enforcement and Prevention (STEP) Act.

The STEP Act was originally passed in an effort to deter criminal gang activity by imposing stricter penalties on those who participate in gang-related crimes. At the time of its passage, the law defined a criminal street gang as any ongoing organization, association, or group of three or more persons, whether formal or informal, which has as one of its primary activities the commission of one or more of the criminal acts enumerated in the Penal Code, has a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.

A gang enhancement can significantly increase a sentence. For example, if a person is convicted of a felony that is found to have been 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 any criminal conduct by gang members, the court can impose an additional sentence of 2 to 15 years in prison, depending on the underlying felony.

Furthermore, if the case involved a serious felony (as defined by § 1192.7) or a violent felony (as defined by § 667.5), a gang enhancement can add even more years to a sentence. As is the case with most sentencing enhancements, a gang enhancement is in addition to any other penalties provided by law, meaning it is added on top of the sentence for the underlying crime.

Of course, like any other fact that can increase a person’s sentence, gang enhancements are subject to legal challenges and require the prosecution to prove certain elements beyond a reasonable doubt, including the defendant's association with a gang and the gang's involvement in the crime. There has also been a push in recent years to limit the situations in which California gang enhancements apply.

When gang enhancements first became a part of California law, they were very frequently used. In large part, this was due to the exceedingly broad language used in § 186.22, which provided that a “criminal street gang” was defined as follows:

“[a]n ongoing organization, association, or group of 3 or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the enumerated criminal acts, having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity.” (emphasis added)

However, by passing AB 333, California lawmakers recently changed the wording of § 186.22 to define a criminal street gang as “[a]n ongoing, organized organization or group of 3 or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the enumerated criminal acts, 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.” (emphasis added)

While these two definitions appear almost identical, there are two important differences. First, AB 333 added the word “organized” to the first sentence of the definition. This ensures that the gang enhancement will only apply where there is an organized group of individuals rather than a group of friends who may occasionally engage in criminal activity.

Second, and perhaps more importantly, AB 333 removed “individually” from the last sentence of the definition. Thus, after AB 333, prosecutors need to prove that a group worked together to commit the specified crimes; it is no longer enough to show that individual members of the group are committing specified crimes on their own.

Assembly Bill 333 also limited the underlying felonies that are eligible for a gang enhancement and requires that the prosecution prove the alleged crimes benefitted a criminal street gang in some way that was more just a repetitional advantage or benefit.

Under the current state of the law, prosecutors must prove the following when they bring a gang enhancement:

1. The crimes illustrated a pattern of criminal gang activity; and
2. The crimes benefitted a criminal street gang in a way that was not merely reputational.

This is a very important – and complex – question. As a general rule, a true finding for a gang enhancement will add an additional term of two, three, or four years to the defendant’s sentence at the court’s discretion.

If the underlying offense is considered a “serious felony” under Penal Code § 1192.7, the gang enhancement will add a term of five years to a defendant’s sentence. The list of serious felonies in California is voluminous and includes but is not limited to the following:

• Arson
• Assault by a life prisoner on a non-inmate
• Assault with a deadly weapon by an inmate
• Assault with a deadly weapon or instrument on a peace officer
• Assault with intent to commit rape or robbery
• Attempted murder
• Burglary of the first degree.
• Kidnapping
• Lewd or lascivious act on a child under the age of 14 years
• Mayhem
• Murder
• Oral copulation by force
• Rape
• Robbery
• Sodomy by force
• Voluntary manslaughter

Serious felonies also include the following:

• Any felony where the defendant personally caused another to suffer great bodily injury
• Any felony involving a defendant’s personal use of a firearm
• Any felony punishable by death or life in prison

If the underlying offense involved a “violent felony” as outlined in California Penal Code § 667.5, a true finding of a gang enhancement will add ten years to a person’s sentence. The list of violent felonies under § 667.5 is also lengthy and includes but is not limited to the following offenses:

• Murder
• Robbery
• Arson
• Sexual Penetration
• Lewd Acts with a Child
• Oral Copulation
• Sodomy
• Indecent Exposure
• Child Pornography
• Incest
• Assault with Intent to Commit a Specified Felony
• Continuous Sexual Abuse of a Child
• Threats to Victims or Witnesses

Of course, some crimes are both “serious” and “violent” felonies. In this case, the offense is considered a violent felony for the purposes of a gang enhancement.

If the underlying offense was allegedly committed on school grounds or within 1,000 feet of a school, this fact will be used as an aggravating factor. This means that the judge will be more inclined to hand down the upper term of four years.

Penal Code § 186.22 also contains a substantive offense in subsection (a), which provides,

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.

Unlike the gang enhancement under subsection (b), subsection (a) is a crime in and of itself. Participation in a criminal street gang is a wobbler, meaning prosecutors can charge the crime as either a felony or misdemeanor. If charged as a misdemeanor, gang participation carries a sentence of up to one year in county jail and a fine of up to $1,000. However, if charged as a felony, participation in a criminal street gang carries a sentence of up to three years in state prison and a fine of up to $3,000.

If you or a loved one is serving a long prison sentence that involves a gang enhancement, recent developments to California’s sentencing laws may enable you to petition the court for relief in the form of a resentencing hearing. At Power Trial Lawyers, our California criminal appeals attorneys aggressively pursue resentencing relief on behalf of inmates across the state.

To learn more, and to schedule a free consultation with a California criminal appeals attorney to discuss your case, give Power Trial Lawyers a call today at 213-800-7664. You can also connect with us through our secure online contact form.