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At the Law office of Gerald Schwab, I am a former Army, and Army National Guard Military Policeman, Persian Gulf War Veteran, Juvenile Corrections Officer, Probation Officer, and Deputy District Attorney as well as an Adjunct Criminology Instructor who now defends people accused of Gang Crimes. 

I have defended more than 100 hundred gang cases, and went to trial on more than 15 serious Felony gang cases. 

It is vitally important if you have been accused of a gang crime to have an experienced criminal defense attorney handle your case.  Gang cases are much different than other criminal cases and you should be careful hiring an Attorney that purports to be some type of gang expert yet has never tried a gang case.  I have successfully defended and have achieved aquitals in gang cases and had gang cases either dismissed at preliminary hearing on at least two occassions in Fresno County. 

Penal Code section 186.22 is part of the California Street Terrorism Enforcement and Prevention Act.  more commonly referred to as Calfornia's Street Gang enforcement law.

 

In its simplist form this law states that anyone who committs a felony for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promot further or assist in criminal conduct by gang members is guilty of an additonal term of imprisonment how long that additional term is defendant on the underlying felony offense and whether any of the  people involved in the Felony offense were armed at the time of the Felony.

 

I thnk this is a good time to stop and look at how serious this additional gang enhancement can affect and work.

Many times I have represented individuals who were merely present at the time an armed fellow gang member was committing a crime.  The prosecutio will always assert that the other gang members were acting as lookouts for there fellow gang members.  This can lead to a a life imprisonment sentence for the lookout.  Let me explain how.

First, even if you are not a gang member say you went along with two known gang members to rob and individual.  During the course of the Robbery one of the Gang Members shoots and kills the person they were attempting to rob.  This now puts all three involved if proven, in jail for the remainders of there lives the reason.

Under the 12022.53 which is the so called "use a gun and your done" statute, a person that used a gun to commit a crime gets an additonal 10 years in prison, someone who actually fires a gun gets an additional 20 years in prison, and someoen who shoots the gun and causes Great Bodily Injury, is subject to life imprisonment. 

Now normally the person getting life must have personally inflicted the great bodily injury, however, the once exception to this is if you were acting with  specific intent to promote further of assist in crimnal conduct by gang members.  It does not matter if you are not a gang member. 

Therefore in the above example the non-gang member above would be subject to life imprisonment for the crime.  Because he was acting as a lookout IE acting with specific intent to assist the gang member in committing the Robbery he is guilty of the underlying crime as well as liable under the 10, 20, life provision and will never get out of prison because usually the enhancement will be stacked upon the underlying crime, they do not run concurrent or at the same time.   Therefore the sentences will usually end up very high levels 25 to life plus 15 years plus any other crimes. 

This perfectly illustrates how gang crimes are different and must be defended an experienced trial attorney.

 

If after reading this article you have question give us a call at Law office of Gerald Schwab. 

 

The crime of Participation in a Gang.

There are two parts to the Penal Code section 186.22 the first part deals with seperate crime of "engaging in gang activity" the second part deals with sentencing enhancements. 

Lets begin by looking at the first part Penal Code section 186.22 a

1. That you actively participated in a gang.

2. knowing that the members engage in a "pattern of criminal gang activity"

3. That you wilfully "promoted, furthered, or assisted in felonious conduct by members of that gang.

 

if proven you face either a Misdameanor or a Felony punishable by 16, months 2 or 3 years in jail. 

 

under the firs element you must be Actively participatie not passively or nominally, participating.  This is a factual determination.

 

Penal Code section 186.22 B Sentencing Enhancement Law. 

The second part of the Gang Statute deals with the sentencing enhancement law.   

Unlke the stand alone statute this statute does not require active membership in a criminal street gang only that

you acted

for the benefit of

at the direction of or

in association with any criminal street gang, and

with the specific intent to promote further or assist in criminal conduct by a gang member again you don't have to be a gang member only that you assited a gang member in criminal conduct. 

This is an enhancement and therefore enhances your sentence depending on the underlying crime.

If a non serious non violent felony than it adds to 2,3, or 4 years to your sentence, to be served in State Prison.

If it is Serious Felony than it adds 5 years to your sentence.

And is f Violent Felony it adds Ten Years.

And as stated above under the 10-20-life provisions it could add a life sentence.

 

There are also severl other statutes that if you are convicted under this statute in addition to those you could face life in prison if you are convicted of those crimes in conjunction with the Gang sentencing enhancement.

 

Penal Code section 215 Carjacking

Penal Code section 213 Home Invasion.

 

or a 12022. 55 discharging a weapon from a motor vehicle commonly referred to as a drive by shooting. if that shooting causes death or great bodily injury. 

 

Penal Code section 186.22 D

there is one last penalty that Penal Code section 186.22 imposes and that is the misdameanor enhancement. 

Under this statute the prosecution  is allowed to turn a midameanor into a Felony under certain circumstances.  If the Misdameanor was committed "for the benefit of at the direction of or with specific intent to promote further or assist in criminal conduct by gang members than the midameanor can be enanced to a Felony. 

However, the additional Gang Enhancement of 186.22 b cannot be added to the crime.

An example if someone committed the Misdameanor of 417 brandishing a weapon and called out a gang slogan while doing so this could be enhanced to a Felony; hower, the additional enhancement under 186.22 cannot be added to the sentence. 

If you have any questions regarding these crimes don't hesitate to call the Law office of Gerald Schwab.

 

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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Law Office of Gerald Schwab, Jr.
Fresno Criminal Defense Attorney
5588 N Palm Ave,
Fresno, CA 93704
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