May 6, 2011
Recently, The Bureau of Alcohol Tobacco and Firearms (ATF) arrested and filed criminal charges against several alleged gang members for a number various things but mostly having to do with criminal possession and sales of weapons and drug charges.
Additionally, these alleged gang members will be charged in criminal court with a gang allegation. This is an enhancement to the criminal charges prosecutors file against a person and greatly effects the possible sentencing on a criminal case. It is one of the most challenging issues to deal with on a criminal case and it is highly recommend that a person facing such allegations hire an experienced criminal defense attorney to represent them.
Below I will try to touch on certain common questions my clients have when they are charged with a crime and are also facing a gang enhancement allegation. Understand however that no two cases are alike and only a Los Angeles criminal defense attorney who has all of the facts of a particular criminal case before him will be able to give you the right advice.
THE ELEMENTS OF THE GANG ALLEGATION
When a person is charged in criminal court with a gang allegation for participating in a criminal street gang, the criminal prosecutors will have to prove that:
- The person has actively participated in a criminal street gang;
- When person participated in the criminal street gang, he or she knew that the gang engages in a pattern of criminal activity;
- directly committing a criminal felony act himself or;
- aiding and abetting another member of the criminal street gang to commit a criminal felony.
The criminal prosecutors will not have to prove that a person accused of participation in a criminal street gang was an actual member of the gang or that the person devoted a substantial amount of time to the criminal street gang. It is enough that the person has some role to make an allegation against that person.
CRIMINAL STREET GANG DEFINED
A criminal street gang is defined by the California Penal Code as being any organization, or group of three or more persons:
- That has a common name or common identifying sign or symbol;
- That has, as one or more of its primary activities, the commission of certain specified crimes. The crimes involved are too many to list in this article but trust me when I tell you the list is long and extensive;
- Whose members engage in criminal street gang activity.
The criminal prosecutors do not have to prove that every person involved in the criminal street gang was involved in the criminal activity charged when the crime took place. When a person is charged with a crime and has a gang allegation also, the jury may use the crime charged to determine if in fact street gang activity was involved.
The jury may not find that there was a pattern of criminal gang activity unless that jury unanimously agrees that that two or more crimes that satisfy the requirements discussed above were committed.
I have simplified the definition for the purpose of preparing this article, in reality the street gang allegation is one of the most complicated topics in criminal law today. It is also the most drastic and, as discussed next, carries with it severe penalties for those that are convicted. That is why it is crucial that someone who is charged with a crime have a competent criminal defense attorney represent them.
PENALTIES AND ENHANCEMENTS FOR STREET GANG ACTIVITY
Participation in a criminal street gang is a crime itself. It may be charged as either a felony or a misdemeanor and is what in California is defined as a wobbler. A person who is convicted of participating in a criminal street gang may be sentenced to imprisonment in the county jail for a period not to exceed one year if it is a misdemeanor and by imprisonment in the state prison for sixteen months, or two or three years if the conviction is for a felony crime.
Additionally any person who participates in a criminal street gang with knowledge of its nature, and who willfully promotes, assists, or benefits from any of the criminal activity of the members of the street gang may be charged with conspiracy to commit the felony charged against other members as a coconspirator. This is a much lesser level of involvement than what is required without the criminal street gang allegation and often time people who had only a minor role in a crime can be charged as if they were the actual perpetrators.
GANG ENHANCEMENTS TO CRIMES
The problem for most people is not the actual charge but the enhancements that apply if a crime is charged and a criminal street gang enhancement is also alleged. Often times the penalties associated with that enhancement will be much greater than the actual charge. In fact this is the case more often than not.
If a person is convicted of any felony crime where the penalty is less than life in prison that is committed for the benefit of, at the direction of, or in association with a criminal street gang, the criminal court will add an additional two, three, or four years to the sentence at the criminal court’s discretion.
If however the felony is defined as serious felony by the Penal Code, the court will add five years to the original sentence.
If the felony is defined as a violent felony by the Penal Code then the court will add 10 years to any sentence. For example if a person is found guilty of the crime of assault with a deadly weapon, the court may sentence them to either 3, 5 or 7 years but then add another ten years simply because the gang allegation was sustained.
Additionally as I discussed above, a person can also be charged as a conspirator despite having a minimal involvement in the crime. That means that the person may also be charged with any additional non-gang enhancements as if he were the actual perpetrator. This can add several years to the person’s sentence as well. For example if a firearm was discharged (shot) during the crime an additional 20 years will be added to the sentence not just to the person who shot it, as would have been the case without a gang allegation, but to everyone present because of the gang alleagtion.
As you can see the law relating to gang allegations and enhancements is complicated and not on your side. That is why it is crucial that you have a criminal defense attorney represent you in criminal court. Only an experienced criminal defense attorney who zealously and aggressively fights for you can help get you out of this bad situation.
FOR A FREE CONSULTATION AND CRIMINAL CASE EVALUATION CALL TOLL FREE 888 335-6008 OR CONTACT US HERE.