Gang Activity / Allegations

Gang Activity or Allegations

One of the most difficult cases to defend in a criminal court is a charge that contains an allegation that the accused is a gang member. California enacted the "California Street Terrorism Enforcement and Prevention Act" in 1988. What follows is a brief overview of the gang statute in California and what an experienced criminal lawyer must do to defend a client charged under the gang law.

California's gang statute defines a criminal street gang as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts [some 28 specified felonies listed in 186.22(e)], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity."

Penal Code section 186.22(a) makes it an alternate misdemeanor or felony to participate "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..." This charge is rarely brought by prosecutors.

Penal Code section 186.22(b) is the gang enhancement section that is frequently used by prosecutors. The charge can add time to the penalty for felonies "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..." Given this language, even persons who are not gang members can be punished under this law for committing a crime in conjunction with or to benefit other gang members. The gang allegation can add 5 or 10 years to some felonies or convert other crimes that wouldn't normally carry life into life cases.

As a practical matter, however, it is not usually the added sentences that create such a great difficulty for persons charged with a gang enhancement. The cases are so difficult because the gang enhancement allows the government to call a "gang expert" to testify about the how gangs are the "armies of darkness." The "gang expert" is usually nothing more than police officer that has worked a gang beat. The prosecutor will use the term gang as a theme that runs throughout the entire case to explain why witnesses have changed their story, are terrified of the defendant and, in short, why they should convict the accused gang member.

Successful attacks can be made against gang allegations. Defense counsel must demand that the government turn over all of their "gang evidence" about not only the accused but all the involved parties. The credentials of the "gang expert" must be obtained along with his prior testimony about the same gang. Gang experts do say the craziest things. At the preliminary hearing the gang expert's lack of credentials can be exposed as well as his basis of knowledge. The testimony from the preliminary hearing can be used at trial to do further damage to the government's case. Finally at trial, legal motions can be made to limit the gang "expert's" testimony to prevent the sort of testimony above. A well prepared and executed cross-examination of the gang expert can greatly damage the prosecutor's case.

Attorney Stephen G. Cline has been practicing criminal defense for nearly 20 years. His reputation and experience will be the key to the aggressive defense of your Gang Allegations. Call today at (619) 235-5638 to discuss your specific case!

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