Gang Enhancements

gangIn the 1980s, there was an explosion of gang related crimes in California.  In 1988 the California Legislature responded by enacting the California Street Terrorism Enforcement and Prevention Act, also known as the gang enhancements law.  For anyone convicted of a felony, if the prosecution is also able to prove that the felony was committed for the “benefit of, at the direction of, or in association with any criminal street gang with the intent to promote, further or assist in any criminal conduct by gang members,” that person will also be sentenced to an additional 2, 3, or 4 years.  If the crime is a serious felony, the sentence will be increased by an additional 5 years.  If it is a violent felony, the sentence will be increased by an additional 10 years.  The sentencing goes up for crimes that take place near a school, for home invasions, and for drive-bys.  Even for a first offense.

A criminal street gang is defined as any ongoing organization, association, or group of three or more people, whether formal or informal, whose primary activities are the commission of certain crimes, who have a common name or identifying sign or symbol, and whose members engage in a pattern of criminal gang activity.

In order to prove a gang association, the prosecutor has to show that the person a) actively and currently participated in a street gang; b) the members of that gang engage in a pattern of criminal activity; c) that person knew that the gang members participated in a pattern of criminal activity; and d) that person aided and abetted members of that gang in committing crimes.

It is important to note, you do not have to be a gang member to be charged with a gang enhancement.  The prosecutor only has to show that the offense was committed for the benefit of a street gang by someone associating with the gang.

One of the major criticisms of using the gang enhancements has been the incorrect identification of a person as a gang member or associate.  In order to prove that a person is a member or an associate of a gang, the prosecution usually brings in a gang expert to testify.  That expert is typically a police officer who has worked in the gang unit.

The gang expert is then permitted to talk about the gang at issue, their crimes, and why they believe the defendant is associated with or a member of that gang.

This testimony is often highly prejudicial to defendants.  When the expert talks about the crimes the gang is involved in, they usually discuss the most heinous and violent crimes.  Many critics believe that defendants are then convicted merely on the basis of guilt by association.  There have been a significant number of constitutional challenges to gang enhancements, methods used to identify gang members in court, and permitting the prosecutor to bring in evidence of unrelated crimes committed by other people.

An important note – when a prosecutor alleges that a gang enhancement should apply to a case, they are permitted to introduce evidence that they would never be able to use in a non-gang case.

If convicted of a crime with a gang enhancement, a first time offender can be sentenced to an extremely high amount of time in prison, some crimes can be elevated to “strike” level.  A person with criminal history can be effectively sentenced to life in prison due to the gang enhancement.  There are a number of defenses that can be raised against a gang enhancement, and expert witnesses who can be called in to rebut the state’s gang expert. If you are accused of a crime with gang related enhancements, it is imperative that you hire a highly skilled and knowledgeable attorney. For a free consultation, contact us.

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