California has a history of fighting gang violence with tough sentencing laws for close to 30 years. While this goal is laudable, the tough stance the State has on gang violence has led police to associate individuals with these organizations simply based on where they live. Being accused of association with a gang can have dire consequences, and a criminal defense attorney should be contacted as soon as possible to ensure one’s legal rights are protected. In order for a prosecutor to charge a person with a gang-related crime, the group with whom the person is allegedly connected must fit within the state’s definition of a gang. Specifically, a group can be considered a gang if it has three or more members that use a common name or identifying mark, and engage in criminal activity. Examples of gangs that fall under these laws include MS-13, the Bloods, and the Crips. The mayor of Berkeley wants law enforcement to add Antifa to that list, a group of violent left-wing extremists that disrupted a peaceful demonstration recently held in the city by Trump supporters. California has two laws that are commonly used to penalize gang activity under what is known as the STEP Act (California Street Terrorism Enforcement and Prevention Act): participation in a gang and a sentencing enhancement provision for crimes connected to the gang. A discussion of what the prosecutor must prove in order to convict or enhance a sentence related to gang activity will follow below.
Participation in a Gang
California law says it is a crime to participate in and assist a gang with criminal activity. In order to convict a defendant for this offense, the state must prove the defendant:
- actively participated in the gang (more than passive association, but frequently hanging out with known gang members could satisfy this requirement);
- knew the members were involved in a pattern of criminal activity, which relates to the commission of two or more specified crimes on two or more occasions by two or more people within three years of one another; and
- knowingly assisted, furthered, or promoted felony criminal conduct (directly committed a felony or aided and abetted a felony).
This offense is a wobbler and can be charged as a misdemeanor or felony. The potential sentences range from one year in county jail up to three years in State prison and the imposition of substantial fines.
Sentencing Enhancement for Gang Association
If a defendant is suspected of committing a crime in connection with a gang, the prosecutor can seek to impose a sentence enhancement that would extend the individual’s sentence to varying degrees depending upon the underlying crime. Before the sentencing enhancement may be applied, the prosecutor must first prove the defendant was guilty of the underlying crime, and then prove the following:
- the underlying crime was committed for the benefit for, under the direction of, or in association with a criminal gang; and
- the crime was committed with the intent to further, assist or promote the criminality of the gang.
Note that active membership or participation in the gang at the time of the crime is not required before the sentence enhancement can be applied. As mentioned above, the amount of sentence enhancement depends upon the underlying crime, and can range from two years in State prison to a life sentence. Determining how long the additional sentence would be is somewhat complicated, and a criminal defense attorney should be consulted to assess the specifics of a particular case.
Hire a Criminal Defense Attorney
Being associated with a known gang is a serious issue, and an experienced criminal defense attorney may be the only thing between you and a long prison sentence. Manshoory Law Group, APC represents individuals charged with crimes in the Los Angeles area, and has extensive experience defending against a wide range of criminal charges. If you are charged with a crime, you need a committed and strong advocate, like those at the Manshoory Law Group, to defend your rights. Attorneys are available 24/7 to take your calls. Contact us for a free consultation.