California criminal law makes it a crime to actively participate in a criminal street gang and assist the gang in any felony criminal conduct. 

Any person, however, even if not a gang member, who commits a felony for the benefit of a gang will receive a mandatory prison sentence that is additional to the sentence received for any underlying felony conviction.  

California law defines a criminal street gang as an ongoing organization with the following characteristics:

  • It has three or more individual members;
  • Members display a common identifying mark, name, or symbol;
  • Its primary goal is to commit crimes associated with gang violence;
  • The members engage in crimes either alone or with other gang members.

Do I Have to Be a Gang Member to Be Convicted of Gang Affiliation in California?

A person does not have to be a gang member to be convicted of gang affiliation in California. A person only has to be charged with taking part in gang activity to be convicted of participating in a criminal street gang. 

The criminal activity that can lead to this charge can range from willfully helping a gang member to committing a crime for the gang. California has specific crimes associated with gangs such as robbery, murder, and kidnapping.

In California, a gang affiliation charge is considered a wobbler, meaning a defendant can be convicted of either a misdemeanor or a felony. A misdemeanor conviction is punishable by up to 1 year in jail and a fine of up to $1,000. A felony conviction is punishable by 16 months to 4 years in prison, as well as a fine of up to $10,000. However, the defendant may be eligible for a harsher sentence under the gang affiliation enhancement. 

For example, suppose that a defendant is a member of a gang that engages in distribution of illegal substances. He is arrested and charged with possession of a controlled substance with intent to sell. He can also be charged with participation in a gang, because he engaged in the trafficking of drugs as a gang activity. He can face an increased sentence, one sentence for conviction of drug trafficking and another for conviction of gang participation.

What Is the California Gang Affiliation Enhancement Law?

According to the STEP Act (“California Street Terrorism Enforcement and Prevention Act”), a defendant can receive an additional sentence if they are affiliated with a gang or helped a gang in the commission of a felony. If the prosecution can prove that a defendant associated with a gang member and was found guilty of a felony, years can be added to the defendant’s prison sentence. 

For example, a defendant might be the girlfriend of a gang member, although not a gang member herself. The defendant helps her boyfriend threaten harm to someone who owes the gang money, which constitutes the crime of extortion in California.

The defendant can be convicted of the crime of extortion. She can face a sentence of up to ten years in prison in addition to her sentence for the extortion conviction, because she acted for the benefit of a gang. She does not have to be a member of a gang, but only has to have acted for the benefit of a gang on one occasion. This is an example of sentence enhancement for committing a felony with the intent to help a gang.

What Does a Prosecutor Have to Prove Regarding California Gang Affiliation Enhancement?

A prosecutor can justify a sentence enhancement for gang affiliation or helping a gang by proving the following: 

  • Commission of a felony: The defendant committed a felony;
  • Gang-related: The crime was committed for the benefit of, at the direction of or in association with a criminal street gang;
  • With specific intent: The defendant acted with specific intent to assist, promote, or further conduct by members of the criminal gang. 

The person charged with the enhancement does not have to be an active participant or member of a gang. Rather, the person only has to have acted with the intent to assist, promote or further conduct by gang members.

What Happens If I Am Convicted of Gang Affiliation in California?

A defendant convicted of gang affiliation in California faces increased punishment. The extent of the increased punishment depends on the circumstances of the case. The general rule is that if a defendant is convicted of a felony and the jury also finds that the STEP Act enhancement applies, the court must add an additional prison term of 2, 3 or 4 years to the defendant’s sentence. This additional prison term is added to the term the defendant receives for the underlying felony. 

So, for example, if a defendant is sentenced to 3 years for robbery and the enhancement applies, the defendant could be sentenced to 5, 6 or 7 years, i.e. the 3 years for robbery plus 2, 3 or 4 more years for the enhancement.

What Time Will I Face According to the California Gang Affiliation Enhancement?

The general rule is that a sentence of 2, 3 or 4 years is added to the sentence for the underlying felony. There are, however, a number of exceptions to the rule. They allow for even longer prison sentences for various, specified felonies as follows: 

  • Serious felony: for a serious felony, the sentence is increased by 5 years in prison; there are 42 serious felonies specified in California criminal law;
  • Violent felony: for a violent felony, the sentence is increased by 10 years in prison; there are over 20 violent felonies specified in California criminal law;
  • Carjacking, home invasion robbery, drive by shooting: for any of these 3 crimes, the sentence is increased by 15 years;
  • Extortion by force or fear: for the crime of extortion by force or fear, the sentence is increased by 7 years; 
  • Dissuading a witness: for the crime of dissuading a witness, the sentence is increased by 7 years.
  • A felony punishable by life in prison: if the defendant is sentenced to life in prison, they receive no credit towards parole eligibility for a minimum of 15 years.

It is possible for a defendant to be convicted of two or more criminal acts committed within hours of each other. The STEP Act enhancement can apply to both and result in lengthy prison sentences for each. For example, a group of gang members might commit two robberies on the same night. A jury can find that both robberies were committed for the benefit of the gang. Because the two crimes were separated by time and distance and had two separate victims, the defendant can be sentenced separately for each crime and additional years can be added to each sentence under the STEP Act.

Should I Contact a Criminal Lawyer?

A defendant who is charged with assisting a criminal gang in committing a felony or with a criminal gang enhancement offense might face lengthy prison terms. The law is complex. Also, there are defenses to both kinds of charges. An experienced California criminal lawyer can also work to defeat proof of the elements of these crimes. An experienced criminal lawyer is familiar with the defenses 

Therefore, a person who is charged with either offense would most definitely want to consult with a California criminal lawyer in order to have professional assistance in fighting the charge.