When we talk about “gang crimes” what we really mean are felonies, or in the very rare case, a misdemeanor, that are committed by either one person, or two or more, depending on the charge, who are connected to a criminal street gang as defined in Penal Code section 186.22. The first way that someone can be punished as a gang member or a gang associate is by committing some felony with another known gang member or associate, so long as the person who is being charged in this way is an active participant in a proven criminal street gang with the knowledge that the gang has committed a pattern of crime. This is a violation of Penal Code section 186.22(a) and is punishable by up to 3 years in prison in addition to the punishment for the target felony offense. With this type of “gang crime”, you can’t be convicted if you commit the crime alone, say a car theft, because if you act alone you obviously aren’t promoting or assisting other gang members’ felonious conduct.
The much more potentially serious way you can be punished for committing a “gang crime” is if you act either alone or with other gang associates or members to commit a felony for the purpose of benefitting the gang in some way or commit the crime at the direction of or in association with the proven gang, if you have a specific intent to promote, further or assist the criminal conduct or target offense being committed by the gang members. In this type of case you would be charged with committing the underlying offense like, for example, carjacking, along with the “gang enhancement” under Penal Code section 186.22(b). The amount of additional punishment for this enhancement depends on the type of target crime committed, whether a gun was used and whether someone was injured or killed by the gun.
It is extremely important to have a lawyer who is experienced in going to trial in these types of cases because the stakes are very high and a lawyer who has done this type of trial before can possibly get certain evidence excluded at trial, may get the judge to stop a prosecutor’s gang expert from testifying that you are a known gang member because the gang connection is flimsy, or may create doubt about the gang expert’s credibility through knowledgeable cross-examination and through a defense gang expert. Because there is such pressure on law enforcement to clamp down on known gangs, crimes that may be committed by known gang members that are being done for personal benefit only, with no connection at all to benefitting any gang, may get charged with a gang enhancement anyway. For example, two known gang members who are known drug addicts and need to steal money to support their habit may commit a robbery of a purse on the street to get cash to buy drugs for personal use. They’re guilty of the robbery but may be completely innocent of any gang enhancement which could have increased their punishment by 10 years, or more if a gun is used, because the crime was strictly for personal gain.