California is home to some of the nation’s longest-running and most deadly street gangs. In 1988, to curb the violence associated with these criminal organizations, the state enacted Penal Code section 186.22 (PC), known as the California Street Terrorism Enforcement and Prevention (STEP) Act.
Unfortunately, these measures ended up being disproportionately used against minorities by allowing anyone who could be considered to be “affiliated with a gang” to be subject to the enhancements of the law if they were accused of any criminal offense. In fact, the defendants involved in 92% of gang enhancements cases are persons of color. To help remedy this inherent bias in the law, the state legislature introduced sweeping changes to the state’s gang enhancement law in 2022 under AB 333, known as the STEP Forward Act.
What are Gang Enhancements?
If San Diego County police or prosecutors suspect someone committed a crime for the benefit of a gang, they may add a gang enhancement to the charges. While this is not technically a criminal charge, it will drastically increase the consequences for any crimes you are convicted of.
Because this is only an enhancement, you could be found guilty of the original crime without a gang association, and you will not face the enhanced sentence. Alternatively, you may be found to be in a gang but innocent of the crime, leaving you free from any penalties.
What Are the Penalties for Gang Enhancements?
Under California’s gang crime laws found under penal code section 186.22 (PC), a gang enhancement can be a felony or misdemeanor. Anyone found guilty of a misdemeanor enhancement will be subjected to a minimum sentence of 180 days in county jail. As a felony, up to four additional years can be added to the sentence. In a case involving very serious violent crimes like murder or a drive-by shooting, you could have ten years to life imprisonment added to your sentence.
Even if you are granted probation, you will still be required to serve a minimum sentence of 180 days in jail before you can serve your probation. In some cases though, a court can choose to strike a gang sentencing enhancement, including the minimum jail sentence, which is why it pays to work with a top San Diego gang charges defense attorney when facing these serious allegations.
What Crimes are Subject to this Law?
Prior to the passage of AB 333, any misdemeanor or felony offense could be used to show someone “engaged in a pattern of criminal gang activity.” Now only felony offenses are subject to these sentencing enhancements and looting, felony vandalism, and identity theft are exempt from the law. Another change is that the current crime cannot be used to provide evidence that the defendant engaged in a pattern of gang activity. Offenses that may subject you to a gang enhancement include:
- assault with a deadly weapon
- drug crimes, including sales, manufacturing, distribution or transportation
- shooting at an inhabited dwelling or occupied motor vehicle
- drive-by shooting
- intimidating witnesses
- grand theft
- money laundering
- illegal sale, transportation, delivery or possession of a firearm
Proving Someone is Part of a Gang
Another major change of AB 333 is the ability of the prosecution to prove someone is a member of a street gang. The previous methods of associating a defendant with a gang are part of the reason these laws were so disproportionately applied to people of color. Simply associating with gang members or going to a location tied in with gang activity was enough to show that someone was involved in a gang -but when someone lives in an area with many gang members, eventually everyone ends up being associated with gang members or locations. Children play at parks where gangsters sell drugs. People in gangs have families who aren’t necessarily in the street gang, but were automatically considered to be under these laws due to their association.
Now prosecutors must be able to prove the defendant didn’t simply have an association with the gang, but was actually a member committing a crime on behalf of the organization.
Additionally, the California Supreme Court clarified section 186.22(a) is not violated by a gang member acting alone but is violated only when an active gang member commits a felony offense with one or more members of his or her gang
The Gang Member Database
Unfortunately, while simply associating with someone in a street gang does not establish membership under AB 333, being in a gang member database might -and this is often all the proof police need to put someone in a state gang registry.
Law enforcement officials maintain a shared with police and sheriff’s departments across California. The San Diego police department and other law enforcement agencies throughout the state also operate their own regional registries. You can be added to a registry without being convicted of a crime if police believe you are part of a criminal street gang based on information such as known associates, tattoos, self-admission, etc. You will be added to the statewide gang member registry if you are convicted of a gang crime.
Police officers will see this registry when they look you up in their database —even for a traffic citation, which may give them a legal reason to stop you on the street or in your vehicle. Surprisingly, some employers and landlords even check the gang member registry before hiring someone or renting them a new home, so even if you never face criminal accusations, being on a gang database can still be a problem.
These registries document your name, photo, aliases, tattoos, vehicles, activities, and more. Many people already in these registries don’t even know it though police are now legally required to notify people they add to a gang registry. If you aren’t sure but believe you may be on a registry, you or your criminal defense attorney can ask a local law enforcement agency if you are listed as a gang member. Those who feel they were wrongly added to a registry can fight their inclusion first with a local law enforcement agency and then through the court if the agency refuses to remove them. If you have been wrongly added to a gang registry, the San Diego County District Attorney is very open to motions to remove you from the registry.
What to do if You’re Accused
When you have been accused of criminal activity related to a street gang, do not say anything to the police or prosecutors unless you have a criminal defense lawyer present. Remember that anything you say can and will be used against you. As soon as you have been arrested, call (760) 643-4050 or (858) 486-3024 to schedule a free consultation with the criminal defense law firm of Peter M. Liss.