Gang Enhancement on Trial

“For The Benefit of the Gang”

In response to the statewide rise in gang related violence, the California Legislature enacted a “gang enhancement” which adds substantial additional penalties for crimes committed for the benefit of a particular street gang.  But like the “Three Strikes” and “Meghan’s Law” legislation that also came on the heels of public outrage over particular crimes, the gang statute is flawed.  This flaw allows prosecutors to take a statute that was meant to increase punishment for violent gang crime and twist it into a statute that increases punishment for any felony crime simply because the defendant has some past or present connection to a criminal street gang.  So while the statute may well be reasonable where we are talking about increased punishment for crimes related to a drive by shooting involving rival gang members, it is ridiculous when it is applied to substantially increase punishment for a sale of a single rock of cocaine simply because the defendant has some prior history of associating with gang members.  No matter how serious the underlying felony charge you are facing, the addition of a gang enhancement raises the possibility that you could be barred from probation consideration and/or facing substantially more prison time for the offense simply because of some association you had with documented gang members in your past.  With that in mind, the addition of a gang enhancement severely complicates even the simplest of felony cases.  When present, the enhancement requires that your attorney address your conduct in the crime charged as well as whether or not activities and/or relationships you may have had years ago legally support the prosecution’s argument that you committed the new crime for the benefit of a street gang.   

The California gang enhancement has often been referred to as “bulletproof” by defense attorneys that do not have the required experience and/or insight into how to challenge this difficult issue. As a result, some attorneys “throw in the towel” almost immediately into any case wherein they see the gang enhancement alleged.  In reality, it is only a small number of cases wherein the use of this enhancement is not vulnerable to some form of challenge.  These are cases wherein the prosecution has a legitimate gang with a longstanding prior history; an actual gang member that has a long history of claiming and/or acting on behalf of that gang; and an underlying crime that clearly was committed to benefit that gang. Until the prosecution limits their use of this enhancement to just those cases and stops trying to incorrectly leverage larger sentences through the misuse of this enhancement in all other cases, an experienced defense attorney can successfully challenge the use of this enhancement on your behalf.    

There are four general ways to challenge the use of the gang statute against a particular defendant. The first focuses on the application of this statute to a specific defendant based upon his prior criminal history and/or actual gang history.  The second relates to the prosecution’s use of the “gang expert” in order to improperly fill in factual holes in their case with “expert predictions” regarding gang behavior.  The third focuses specifically on conflicts or inconsistencies between past and current testimony of the particular “gang expert”.  And finally, the fourth focuses on the argument that, regardless of the defendant’s gang history, the underlying crime did not benefit any street gang.  

Defendant Specific Challenge

Attacking the gang enhancement in this manner requires that your attorney fully investigate and/or document your background in an effort to establish that you are not a documented gang member, or have no connection to the gang beyond some casual acquaintances, or are someone who has long ago given up actual gang involvement.  

Expert Testimony Challenge

Attacking the gang enhancement in this manner involves focusing on whether the prosecution intends to properly use gang expert testimony.  Or instead and as happens way to often, they intend to misuse such testimony to fill in factual gaps in their case with “expert predictions” on gang activity.  Here, the argument focuses on the fact that “gang experts”, unlike most true scientists or doctors, are offering testimony that has no basis in some form of true science, psychology, or sociology.  Instead, “gang experts” are usually cops who are seeking to offer expert testimony that would allow them to speak to far more issues than normally admissible.  The only properly admissible purpose for such testimony is the situation wherein the testimony is intended to help the judge or jury understand significance of evidence and put it in context of gang behavior/custom.  This form of testimony is completely improper where the “gang expert” seeks to fill in factual gaps or leap to conclusions that suggest he/she can accurately predict individual gang member behavior at any given time simply based upon his training and experience.    

Expert Specific Challenge

This challenge focuses specifically on a particular “gang expert” opinion and how it conflicts with prior testimony he/she has given on same or similar issues in the past.  More often than not, experienced attorneys are well acquainted with the prior history and opinions of particular “gang experts” that are regularly used by the prosecution.  An experienced attorney has done his/her homework on most of the usual experts used by the prosecution and may well already know of cases wherein this particular expert has said or done something that conflicts with their current opinion or the current position they are taking as to your case.  Or even better, they may be aware that a particular “gang expert” will say or do anything in order to protect “his/her” case.    
    
Underlying Crime Challenge

This challenge is by far the most simple of the four discussed herein and is more often than not is used in addition to one of the challenges discussed above.  The argument is simple.  The underlying felony you have been charged with does not in any way “benefit” a particular street gang as required by the language of the gang statute.  For example, if you were charged with the sale of a single rock of cocaine base and because of your prior history, there was also a gang enhancement, your attorney should aggressively focus at both preliminary hearing and/or trial on the fact that the underlying facts of your particular offense did not involve other gang members; was not committed in some form of gang uniform (i.e. colors or special clothing); did not occur in a particular location that is used only by members of this particular gang; and/or that your own addiction or financial needs were the only motivation for the offense.

In closing, a gang enhancement presents a serious challenge for your attorney.  However, in most cases one of the challenges discussed above can be raised successfully.  It is for that reason that you must ensure your attorney has the necessary experience and background required to aggressively pursue such a challenge on your behalf.