Henry J. Hall

Judge (Ret.),

Loyola Law School, 1976

The object of this article and accompanying self-study test is to familiarize readers with gang crimes, including the offense of active participation in a criminal street gang, gang crimes alternate sentencing schemes, and enhancements for crimes committed on behalf of a gang.

Overview

There are two sources of gang laws in California, statutes passed and amended by the Legislature and Proposition 21 which was passed as a voter initiative in 2000. The main statute is the STEP Act (Street Terrorism Enforcement and Prevention), enacted in 1988. Proposition 21 increased the amount of punishment in provisions of the STEP Act, and also added the alternate sentencing scheme treating misdemeanors committed on behalf of a gang as felonies. Pen. Code, Section 186.22(d).

The intent of both the STEP Act and Proposition 21 were to "toughen" anti-gang laws and "step up" enforcement against people who commit gang crimes. The Legislature indicated it was their intent "to seek the eradication of criminal activity by street gangs by focusing upon patterns of criminal gang activity and upon the organized nature of street gangs, which together, are the chief source of terror created by street gangs." Pen. Code, Section 186.21. The voters were informed in Proposition 21 that "Gang-related crimes pose a unique threat to the public because of gang members' organization and solidarity. Gang-related felonies should result in severe penalties." Ballot Pamp., Primary Elec. (Mar. 7, 2000) text of Prop. 21, Section 2(h), p. 119. The anti-gang provisions should be judicially interpreted with these goals in mind. See In Re Robert L., 30 Cal. 4th 894 (2003).

With regard to the constitutionality of gang laws in general, it has been held that statutes which simply criminalize associations or memberships in groups are unconstitutional; laws' constitutionality depends on limiting criminal liability to situations where the defendant has knowledge of the group's criminal activities and has the specific intent to aid or promote those criminal activities. See, e.g., Scales v. United States, 367 U.S. 203 (1961). Thus, the STEP Act does not violate the right of free association. People v. Loeun, 17 Cal. 4th 1 (1997); People v. Gamez, 235 Cal. App. 3d 957 (1991). It is not unconstitutionally vague or overbroad. In re Alberto R., 235 Cal. App. 3d 1309 (1991). Nor does it violate due process. People v. Gardeley, 14 Cal. 4th 605 (1996).

Substantive Crimes

The STEP Act made it a crime to participate in a criminal street gang. Penal Code Section 186.22(a), makes it a crime for "Any person who actively participates in any 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 any felonious criminal conduct by members of that gang."

The crime has three elements: (1) active participation in a criminal street gang which is more than nominal or passive; (2) knowledge that the gang's members have engaged in a pattern of criminal activity; and (3) willful promotion, furtherance or assistance in any felonious conduct by members of the gang. People v. Albillar, 51 Cal. 4th 47 (2010); People v. Robles, 23 Cal. 4th 1106 (2000).

Regarding active participation, membership alone is not enough. People v. Garcia, 153 Cal. App. 4th 1499 (2007). Past participation is insufficient; it must occur at or reasonably close to the time of the commission of the crime in question. Ibid. Leadership in the gang is not required. People v. Castenada, 23 Cal. 4th 743 (2000). Participation must be more than "nominal or passive," but a defendant does not have to devote all or a substantial portion of his or her time and efforts to the gang. People v. Martinez, 158 Cal. App. 4th 1324 (2008).

Knowledge of criminal activity is a key element because "personal" guilt, as opposed to a "status offense," is predicated on personal knowledge. People v. Albillar; People v. Casteneda.

Regarding willful promotion, furtherance, or assistance in any felonious conduct by members of the gang, the specific intent to aid the group's criminal acts is a necessary requirement. People v. Loeun. "Members of the gang" can include the defendant; he or she need not have aided and abetted criminal activities by other gang members, and a defendant's own crime can amount to "promoting criminal conduct by the gang." People v. Ngoun, 88 Cal. App. 4th 432 (2001).

The crime is a "wobbler," alternately a felony or misdemeanor, and when punished as a felony, constitutes a "strike" prior. People v. Briceno, 34 Cal. 4th 451 (2004); People v. Ulloa, 175 Cal. App. 4th 405 (2009). The crime is not subject to county jail sentencing under realignment; a felony sentence is to be served in state prison. Pen. Code, Section 1170(h)(3). Nothing in the statute, however, precludes a probation grant with county jail sentence.

Recruiting or soliciting gang members is also a stand-alone gang crime. Penal Code Section 186.26(a), makes it a crime for "Any person who solicits or recruits another to actively participate in a criminal street gang ... with the intent that the person solicited or recruited participate in a pattern of criminal street gang activity ... or with the intent that the person solicited or recruited promote, further, or assist in any felonious conduct by members of the criminal street gang." The statute provides the crime is a felony, punishable with up to three years in prison.

Alternate Sentencing Schemes

Penal Code Section 186.22(d), provides, "Any person who is convicted of a public offense punishable as a felony or a misdemeanor, which is committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall be [subject to increased punishment]." This statute allows courts to treat all misdemeanors (both "straight" misdemeanors and "wobblers") "committed for the benefit of, at the direction of, or in association with and criminal street gang, with the specific intent to promote, further or assist in any criminal conduct by gang members," as felonies for sentencing purposes. Pen. Code, Section 186.22(d); In re Robert L.

A misdemeanor charged under this statute is a "wobbler," subject to either felony or misdemeanor sentencing in the court's discretion. People v. Arroyas, 96 Cal. App. 4th 1439 (2002). The statute applies to juveniles as well as adults. In re Damien V., 163 Cal. App. 4th 16 (2008). This provision does not define a separate crime but, rather is an alternative sentencing scheme that is not subject to lesser included offense analysis. In re Robert L.

Misdemeanors sentenced as felonies under this provision are not treated as felonies for all purposes. People v. Ulloa. Enhancing the sentence under Penal Code Section 186.22(b) (discussed below), is improper because a misdemeanor cannot be "bootstrapped" into qualifying as an enhancement. People v. Briceno. Under the same "bootstrapping" reasoning, misdemeanor criminal contempt charges prosecuted under Penal Code Section 166 based on violations of gang injunctions may not be prosecuted as felonies; such prosecutions would "double punish" the same gang-related conduct. Lopez v. Superior Court, 160 Cal. App. 4th 824 (2008).

Misdemeanors sentenced as felonies under Penal Code Section 186.22(d), are not "serious felonies" (and are therefore not "strikes"). People v. Ulloa. As held by Ulloa, a misdemeanor with an allegation under this provision also does not render a minor presumptively "unfit" for juvenile court treatment.

Other alternate sentencing schemes require increased sentences for misdemeanor gun possession offenses. Both misdemeanor possession of a concealed firearm and possession of a loaded firearm are punishable as felonies when the defendant is an active participant in a criminal street gang. Pen. Code, Sections 25400(c)(3); 25850(c)(3).) The defendant must be an active participant in a "criminal street gang" as defined by Penal Code Section 186.22(a). But, the firearm offense need not occur in connection with the defendant's gang activity. People v. Schoppe-Rico, 140 Cal. App. 4th 1370 (2006). Yet another alternate scheme add punishment for loitering about school grounds or public places for gang-related purposes. Pen. Code Section 653b(c).

Gang Sentencing Enhancement

Penal Code Section 186.22(b), provides, "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished [by additional imprisonment]."

Except as otherwise specified in the statute, the person shall be punished "by an additional term of two, three, or four years at the court's discretion." Pen. Code Section 186.22(b)(1)(A). "If the felony is a serious felony, as defined in subdivision (c) of [Penal Code S]ection 1192.7, the person shall be punished by an additional term of five years." Pen. Code Section 186.22(b)(1)(B). "If the felony is a violent felony, as defined in subdivision (c) of [Penal Code S]ection 667.5, the person shall be punished by an additional term of 10 years." Pen. Code Section 186.22(b)(1)(C).

Pursuant to Penal Code Section 186.22(b), there are three elements to the enhancements, (1) Commission/conviction of a felony; (2) The felony was committed for the benefit of, at the direction of or in association with a criminal street gang; and (3) The felony was committed with the specific intent to promote, further or assist in any criminal conduct by gang members.

The defendant need not be a member of a criminal street gang for the enhancement to apply. People v. Bragg, 161 Cal. App. 4th 1385 (2008); In re Ramon T., 57 Cal. App. 4th 201 (1997). Commission of otherwise non-gang crimes in conjunction with gang members may support the enhancement, depending on the testimony of the gang expert. People v. Albillar. Under Albillar, the test here seems to be whether the perpetrators "came together as gang members" to commit the crime. 