Criminal street gangs in the State of California are defined by penal code 186.22. That is the penal code for what is called the “gang enhancement”. They define a street gang as:
- A group of three or more persons
- It can be a formal or informal group
- Having one of its primary activities as a criminal objective (listed below)
- Having a common symbol or representative mark
- Members needs to engage in a pattern of criminal activity
The legislature has gone pretty far in San Diego and has even initiated civil proceedings called “gang injunctions” to make sure that certain members of what they believe is a gang do not associate with each other. It is an ongoing struggle with the district attorney and the groups that they believe are gang related. The main problem for the defense in cases like this is that people believe no one can ever leave the gang. If someone was once in the gang but now has a life, a family and children, they could still be charged with a gang enhancement. It is a scary situation because that enhancement means guaranteed prison and a guaranteed strike.
What offenses are considered Gang related?
Penal Code 186.22 says that if members of the group commit two or more of the following offenses then that would be considered a pattern of illegal activity and therefore they would be considered a gang. They made this very clear in the law in order to be able to make sure it is not ambiguous and they can obtain a conviction. The activities are as follows:
- Assault under Penal Code 245
- Homicide of Manslaughter
- Sale or Transport of Drugs
- Discharging a firearm or shooting into an inhabited dwelling
- Intimidation of a witness
- Grand theft
- Money Laundering
- Selling Firearms
- Concealing Firearms
This is a long list of offenses. They literally put almost every offense that someone could commit as an indication these people are a part of the gang. So the practical question to this is how do they keep track of this? The gang unit keeps plea forms from people who are known gang members and who have been convicted of a gang enhancement. They then use those prior convictions to show that there has been criminal activity in the past. So hypothetically this could be someone’s first offense but convictions of other people in the alleged gang will be used against them.
Defenses to a Gang Enhancement Charge in San Diego
To be convicted of the gang enhancement one must have:
- Actively participated in the criminal street gang
- Knew that the gang was involved in criminal activity
- Willfully assisted the felonious conduct
It should be noted that one has to be convicted of the inherent crime to be convicted of the gang enhancement. Lets say for example someone is charged with a burglary and they have done this with people who are allegedly gang members. If that person is found not guilty of the burglary charge then they are also found not guilty of the gang enhancement. The gang enhancement has to be something that is added to a crime that has been committed.
Other common defenses to this are just simply that one didn’t know of the role of the gang. Also that one did not know about any criminal activity that was taking place. Lets say for example someone joins a group of bikers. The group are all former military and they all share the same values. This person joined this group in order to ride motorcycles. If this person did not know about any of the history of the group it could be hard to argue that they knew about any illegal activity.
Expert Opinions in Gang Cases
Expert Opinions in gang cases are something that are talked a lot about in the field of law. In 2016 the Supreme Court made a decision in People v. Sanchez that basically said that an expert could rely on hearsay when giving their opinion. The best way to say it is this. The prosecutor can ask the “expert”, which is a police officer, a situation where all of their facts are true. For example:
- If someone has friends in a gang
- Has a firearm
- Has a prior conviction
- Has tattoos
Would this person be a gang member? The witness will then say yes. They cannot use the exact facts of their case, but they can create facts that are the exact same as their case. To a jury, they will not understand the difference. These are tough cases to defend and it will take a strong criminal lawyer from San Diego to be able to get the result you deserve.
Gang Suppression Unit Probation in San Diego
The Gang Suppression Unit, also known as “GSU” is group of individuals assigned to a special probation task force. Anyone who is convicted of a gang enhancement and sentenced to probation will be put on GSU probation. GSU probation is different from regular probation in the following ways:
- It has higher scrutiny and more check-ins with the officer
- There is generally a curfew
- There is a condition to not associate with other people
- There are more frequent drug tests
- There are more frequent home searches
- The officers have a greater knowledge of the gang
- The officers are more involved in the probationer’s daily life
Being on GSU can be a struggle for a lot of people, but it can also be a good situation if they are eventually able to get their case reduced to a misdemeanor.
If you have been charged with a gang related crime or a gang enhancement in San Diego, feel free to give Ozols Law Firm a call for a free consultation