This is an important topic because some of the enhancements that tag along with a murder case can add a lot of time to a potential sentence. One thing you have to realize though, in order for the prosecutors to have a chance to get a person for an enhancement in a murder case, they first have to prove the murder. Because if you didn't get a not-guilty verdict on the murder case then the enhancements are irrelevant. Murder is defined under California Penal Code 187.
In other words, the enhancements cannot stand on their own. You can't convict somebody of an enhancement. It's an extra allegation that goes along with a substantive crimes. So, if you can find the person not guilty of the subsequent crime, then the enhancement would not apply in that particular case.
Gang Sentencing Enhancement – Penal Code 186.22
Examples of enhancements that I see in a lot of murder cases are, for example, a gang enhancement. In other words, somebody commits a murder for the benefit or at the direction of a street gang so the prosecutors are going to have to prove that that person — and that's usually a 10-year enhancement – under California Penal Code 186.22.
The prosecutors will to prove that that particular person (1) was either in the gang; or (2) was an associate of the gang — somebody who's hanging out with the gang, doing the same thing that the gang does.
That could be just as good as being a member of a gang. The way they prove membership in a gang is, obviously the person would have gang tattoos associated with a particular gang. They would be caught committing other crimes with that particular gangs in the path.
They also have to prove that that is a gang. So, they'll bring on evidence showing the formation of the gang. They have gang experts who will testify. So, if they can prove that the killing was done at the benefit or at the direction of a criminal street gang in Los Angeles, that's an extra 10-year enhancement that goes on the back of a murder charge.
One bad thing about that enhancement and I think it's kind of nasty, the law is that when they charge the murder charge and they charge a gang enhancement, that will allow the prosecutors to bring in gang evidence against the particular defendant.
That makes the defendant look bad if there's some evidence available. So, even if the can't prove that the killing was for the benefit of a street gang, all that bad evidence dirtying the defendant makes it a lot more likely they're going to get convicted of the murder.
So, as a criminal defense attorney, that's one thing you want to block — that gang evidence coming in against your client, because most of the time what I see — not all of the time, but most of time — there's another reason for the killing other than a gang, but a lot of times the defendant just happens to be associated with a gang or in a gang.
So, the prosecutors decide that they're going to try to say that it had to do with a gang killing and for their purposes, it doesn't really matter if they're wrong or right.
What matters is, they're going to get all that bad evidence in against the defendant in trying to prove the gang enhancement and even if they fall short and don't get that enhancement found true by the jury, then they end up getting that bad evidence to get the murder conviction.
California's “10-20-Life” Gun Law – Penal Code 12022.53
Another big enhancement that we see in murder cases is if there's gun charges. If somebody fires a weapon in a case and hits another person with a bullet, that's a 25-year enhancement. So, the use of a gun in a murder charge makes the crime a heck of a lot more dangerous as far as getting time under California Penal Code 12022.53.
So, that's another enhancement you'll see filed by the prosecutors that can tack-on time to the back of a sentence in a murder case. They also charge other charges surrounding it. Let's say somebody threatens another person. They'll charge a criminal threat.
So, the prosecutors will try to stack a bunch of charges to add additional time or they'll go with the opposite approach. If it's a close case, they'll just charge the murder trying to get the murder conviction versus adding extra charges because there will be concern that the jury might be tempted to just get the person for one of the lesser charges and not the murder.
Especially if it's a close case and they have some problems proving intent or they feel that the defendant has a good defense to the murder charge, but not as good a defense for the other substantive lesser charges that could be filed against him or her, and so the jury will compare the two and say there's good evidence for criminal threats.
There's good evidence for battery, or whatever the case may be. But if we compare that to the evidence for the murder charge that's not as good.
The prosecutors don't want that comparison to be done because they're trying to get the murder conviction. So, that's a little bit of a dangerous game that the prosecutors play because if the jury believes that there's not enough for the murder charge and they don't have other charges surrounding that murder charge, then it will just be a straight not-guilty and the person walks.
That's something the defense has to decide as well. If you're asking the court for lesser charges to be given to the jury at the end of a trial because you think the evidence supports a different charge like voluntary manslaughter for example.
Obviously, you want to talk to your client about that because that is a bit of admission of guilty, so you'd want to do that with your client agreeing to that and the evidence supporting that.
