One of the most difficult challenges that a criminal defense attorney may encounter is when his client is accused of being in a criminal street gang and committing a crime for the benefit of the gang. California severly punishes those individuals who are either in a gang or commit crimes for the benefit of or while in association with a criminal street gang. Defending individuals who have been charged under California gang laws is best left to experienced attorneys who understand this complex area of law.
CALIFORNIA GANG ENHANCEMENT LAW PENAL CODE 186.22:
(a) 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, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.
(b)(1) Except as provided in paragraphs (4) and (5), 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 as follows:
(A) Except as provided in sub-paragraphs (B) and (C), the person shall be punished by an additional term of two, three, or four years at the court's discretion.
(B) If the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years.
(C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years.
If a defendant is convicted of the underlying felony and the underlying felony is a "serious felony" (but not a "violent felony," see below) there is an additional five years in state prison that may be imposed on top of the sentence for the underlying offense. A "serious felony" is a felony listed in California Penal Code section 1192.7(c) or 1192.8. A serious felony may also be a violent felony. Examples of serious felonies include:
•Negligent discharge of a firearm (Penal Code section 246.3)
Making criminal threats (Penal Code section 422)
Lewd or lascivious act on a child under 14
If the underlying felony is a "violent felony" there is an additional 10 years that may be imposed on top of the underlying offense. A "violent felony" is a felony listed in California Penal Code section 667.5(c). Examples of a "violent felony" include: