These gang enhancements are a real problem if you're charged with a crime. Some of the gang enhancements actually carry a ten year sentence with them. So, in addition to being punished or sentenced for the underlying crime, you could also be sentenced to consecutive time for the gang enhancement, and like I said, some of these enhancements carry a lot of prison time with them, And obviously, if you're charged with a gang enhancement, you'll want to get a good attorney than can come and help you.

Prosecutor Adding an Extra Gang Allegation

One thing that's interesting is people should realize that usually the gang enhancement is not going to be just charged by itself. Typically, what's going to happen is, someone is allegedly commit some sort of a crime and then the prosecutors are going to add a gang enhancement which is just an extra allegation related to the crime which can bring more time. In order to prove a gang enhancement under California Penal Code 186.22, typically the prosecutors have to prove the “elements of the crime” listed under CALCRIM 1401 Jury Instructions.

First, they have to show the person is actually a member of the gang or an associate of the gang — somebody who hangs out with the gang, does the same thing as the gang and is operating for the benefit of the gang. That's the key. The second big element is, whatever's being done has to be being done for the benefit of a gang.

Let's say that somebody beats somebody beats somebody up on the street and then they're charged with a gang enhancement. Then the prosecutors are going to argue that person beat them up because they're a gang member and either that's a rival gang member or they're just being gang members and beating people up to show their dominance and authority.

But let's say that the police and prosecutors didn't realize that the person that was beat up had actually hurt the little brother of the person that beat them up and that's why the bigger brother beat them up, regardless of whether or not he or she's in a gang, they saw the person.

They knew they had beat their brother up and they were getting revenge for the beating of the brother. That's not a gang enhancement-worthy crime. That's a battery. The person didn't do it to benefit a gang. They did it because the other person had beat their brother up and they were getting revenge for it. So, that circumstance would be one where a gang allegation really shouldn't be charged.

Benefit of a Criminal Street Gang

I can think of a whole bunch of other examples, but I think you get the idea. Whatever you're doing has to benefit a criminal street gang. Now, a lot of times the prosecutors are really stretching when this gang enhancement can apply, and of course, defense attorneys are trying to argue the opposite thing.

If you're doing anything to another gang member and you're a gang member, of course the prosecutors are going to allege a gang enhancement. That doesn't necessarily mean they're going to prove it, but they'll definitely allege it because they know it brings more time. A lot of times it makes their other crime a strike. It just causes a whole host of problems for the person being charged with it.

What's important to know also is that juries really are going to be more likely to hit somebody with a gang enhancement if the prosecutors can show that they're a gang member. Juries do not take pity on gang members, and if it's a close call, they're usually going to give it to the prosecutors, find the gang allegation true and now the person is looking at all kinds of problems — enhancement, prison time, injunctions. So, these gang enhancements are very important to a criminal case because they can bring a lot of problems for the person.

Los Angeles Criminal Defense Attorney

So, when you're fighting these cases, you're going to want to get a defense attorney who has experience fighting gang allegations, has had success and can try to convince the judge first to get rid of the gang enhancement, and if not, the case is going to have to go to a jury trial and the jury is going to have to decide that that gang enhancement doesn't apply. The person's either not a gang member, not an associate gang member or wasn't trying to do anything to benefit the street gang.

So, if you've got one of these circumstances where you or your loved one is charged with a serious crime, has a gang allegation, they're facing many years in prison, you're going to want to get an attorney like me who's been down this road before, who's had success, who's dealt with these gang cases before, who knows what they're worth and who knows when the prosecutors can't prove them and what to do to challenge them.