Wednesday, August 21, 2013

Gang Enhancement

A gang enhancement is not technically a separate crime but rather an extra charge that increases the penalties available for conviction of a number of underlying offenses. You might be charged with a gang enhancement if the prosecution thinks that you committed a crime for the benefit of a gang. Specifically, a gang enhancement adds an extra layer of punishment on top of the punishment you might face for the underlying crime.

In other words, a gang enhancement allows a judge to add additional, consecutive time to the maximum penalty for crimes if it is found beyond a reasonable doubt that the defendant has committed criminal acts for the benefit of his gang. While the California Street Terrorism Enforcement and Prevention Act makes it a crime just to be an active member of a gang, a gang enhancement requires that a felony charge, other than a gang charge, be lodged against the defendant.

A successful conviction under the gang enhancement statutes could add anywhere from 5 to 25 years to your sentence. But being charged with a gang enhancement is not the same as being convicted.

There are defense strategies available like:

Challenge the underlying felony

If there is no underlying felony, there can be no gang enhancement. Specific defenses apply to different sets of crimes, and it always dependent on your particular case. Common defenses used include, but are not limited to: self defense, defense of others, and coercion.

Prove that you are not an “active participant” in a gang

Gang enhancements cannot be added to a sentence unless the defendant's active participation in a criminal street gang is proven beyond a reasonable doubt.

Prove that you were not acting “for the benefit” of a gang

Similarly, a defendant cannot be given a gang enhancement if the underlying felony had nothing to do with the gang. A defendant can argue that they committed the felony solely for personal reasons. One example of a case that I worked on was an attempted murder case, in which the defendant shot his brother-in-law for hitting his sister. The prosecution tried to prove that he committed the criminal act for the purposes of benefiting the gang.

If you are facing criminal charges you should seek legal help immediately.