Although the precise definition will differ by jurisdiction, a gang is any association, organization, or group of three or more individuals, whether formal or informal, committing offenses as one of its immediate activities.
The group must also have a common name, an identifying symbol or sign, and members who individually or collectively engage in the habit of criminality. If the members are of a particular age, the gang may be labeled a youth gang.
What Is a Gang Enhancement?
There is a more rigid penalty for crimes committed by a “criminal street gang in many jurisdictions.” If a criminal street gang member commits a crime, the defendant may face an additional 2 to 10 years in prison, enhancing the underlying crime’s punishment.
To have a gang enhancement, the prosecution must demonstrate that the defendant actively participated in a gang, knew that the gang members engaged in a pattern of criminal practices, and voluntarily promoted, advanced, or helped any conduct by that gang.
Note that the defendant need not be a leader of the gang or even a member of the gang to have a gang enhancement apply.
A “pattern of criminal practices” are commissions, attempted commissions, solicitation, conspiracy, or convictions of two or more crimes committed on at least two different occasions within a limited time. The pattern of criminal practices need not be gang-related.
Are There Any Defenses To Gang Enhancement?
Several defenses can be used to deny or alleviate gang affiliation. These include, but are not limited to:
- Racial Profiling: Police often consider certain racial groups more likely to be in a gang than others. However, this is an illegal means to add enhancements to a crime.
- Association Fallacy: A defendant may know a gang member, but that does not mean that the defendant is part of the gang.
Is Gang Participation a Crime in California?
In California, it is a crime to actively participate in a gang in two specific ways. To actively participate in a gang means to take part in the crimes gang members perpetrate. Proof of this involves two elements.
The first is if the defendant knows its members engaged in a string of criminal activities. The second is if the defendant intentionally helped, encouraged, or promoted felonious crimes by committed gang members. For instance, if a person intentionally assisted in a gang crime by acting as a getaway driver, they might be held accountable under California gang laws.
Are There Specific Crimes Associated with Gang Violence and Active Affiliation?
California has a long list of crimes that are associated with gang violence, including:
- Grand theft
- Drive-by shootings
- Drug trafficking
- Intimidating a witness or victim
In some circumstances, a person can be charged with gang affiliation, even if they are not a formal member of a gang. The defendant can be charged if they are an associate or knowingly assist, also known as aiding and abetting, a gang member committing a crime.
An example of this is when a person knowingly assists gang members involved in drug trafficking. Another example is where a person helps a gang member in a theft case by intentionally receiving and storing the stolen goods from a gang member.
What Is the Punishment for a Gang Affiliation Conviction?
The criminal sentence for gang affiliation is a wobbler, meaning that it can be charged as either a misdemeanor or a felony. If charged with misdemeanor gang affiliation, the defendant can face up to 364 days in jail and a fine of up to $1,000.
Felony gang affiliation charges can involve longer sentences in federal prison (rather than a county jail) and higher criminal fines. Individuals charged with felonies may also occasionally lose specific rights, such as the freedom to own a firearm.
A defendant convicted for committing a felony for the benefit of a gang may be subject to what is known as a “gang promotion conviction.” They will receive a mandatory prison sentence and a punishment for the felony they committed. This could mean an additional 2 to 15 years, or possibly 25 years to life, depending on the underlying felony.
What Are Gang Affiliation Laws?
In the United States, it cannot be a crime to be a gang member because the First Amendment of the United States Constitution guarantees freedom of assembly. Every U.S. citizen has the right to join any group or club, no matter how offensive its espoused values may be.
Nonetheless, many states have enacted regulations focusing on gang affiliation to deter the criminal behavior of gangs. The definition of a gang differs from state to state, especially regarding youth gangs. In general, however, the law in most states provides that a gang is an organization, group, or association of at least three people that has:
- A common name that the group uses to identify itself and its members;
- Identifying symbol(s);
- Identifying sign(s), for example, hand gestures or the like;
- Members who actively participate in crimes may draw others into criminal activity.
Generally speaking, gang affiliation regulations target individuals who might not necessarily be confirmed card-carrying members of a criminal gang. Yet, they might be subject to criminal penalties due to their association with gangs, gang members, or gang activity.
For example, if a person is caught writing graffiti associated with a certain gang, that individual’s sentence for the crime of tagging might be enhanced because it is gang-related.
What Are the Federal Laws against Gang Affiliation?
The federal government currently does not have any express regulations against gang affiliation per se. Nevertheless, it does prosecute the members of criminal gangs or groups under the assertive federal law known as the Racketeer Influenced and Corrupt Organizations Act (RICO). The Racketeer Influenced and Corrupt Organizations Act is designed to fight organized crime. It enables prosecutors to seek a criminal conviction and civil penalties for racketeering activity that is done as part of the operation of an ongoing criminal enterprise.
Racketeering is defined as operating an illegal criminal business. This crime is commonly associated with the mafia and other organized criminal enterprises.
Criminal penalties for a RICO conviction are 20 years in prison, but the term of imprisonment can be life if the crime committed carries a maximum penalty of life imprisonment. Penalties also include forfeiture of any perpetrator’s assets through their racketeering or gang activity. Civil penalties for a RICO criminal conviction depend on the person or business in which the perpetrator engaged. Compensation is three times the damages suffered. Of course, participation in a racketeering crime under RICO also involves gang affiliation or gang membership.
Conviction under RICO directs the government to indicate that the perpetrator engaged in two or more instances of racketeering activity and that the defendant directly invested in, maintained an interest in, or participated in a criminal enterprise affecting interstate or international commerce. Among the illegal activities that can form the basis for a RICO conviction are committing or threatening murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in controlled substances, and other crimes.
Should I Contact a Lawyer for Help with a Gang Participation Charge?
California laws regarding gang activity, gang participation, and gang affiliation can be complicated. You may wish to contact a California criminal lawyer near you if you need help fighting a gang-related criminal charge. Your lawyer can provide guidance and legal representation for your case.