San Diego Criminal Lawyer On Gang Enhancements
It used to be that defendants were afraid of being punished for the crimes they committed. Now an accused who has associated in any way with a gang is usually more afraid of the dreaded gang enhancement.
California Penal Code Section 186.22 provides in part:
(a) Any person who actively participates in any criminal
street gang with knowledge that its members engage in or have engaged
in a pattern of criminal gang activity, and who willfully promotes,
furthers, or assists in any felonious criminal conduct by members of
that gang, shall be punished by imprisonment in a county jail for a
period not to exceed one year, or by imprisonment in the state prison
for 16 months, or two or three years.
These penalties become increasingly severe for more serious crimes and can even reach ten and twenty years in cases involving firearms and shootings. Often the penalty for the gang enhancement exceeds the penalty for the underlying crime itself.
Gange related enhancements are unfair for several reasons.
First, it is hard to define what is a gang. Are three or four Mexican Americans who gather in a park smoking marijuana and talking about where they are going to buy it a gang? Under an expansive view by the District Attorney's Office ,such a group could be a gang because they gather with the purpose of breaking the law. Or what a about a group of San Diego criminal defense attorneys who gather for beers after work and discuss strategies for defending clients? Where do we draw the line? Gang enhancements often infringe upon a person's right to gather with family members, friends, and colleagues.
It is hard to grow up in many areas of Southern California without knowing people who are affiliated with ganges. Minority individuals are often stopped by police and asked if they know or associate with gang members. These contacts or “Field Identification Cards” are often used later in court to try to prove that an individual is an active gang member.
Another problem with gang laws is the assumption by law enforecment individuals that any time a gang member commits a crime it is gang related. Not so . A gang member may become hungry and steal food with no purpose to promote the activity of a gang. A gang member may become intoxicated and assault someone because of anger. While punishment is warranted for the crime, additional punishment is not warranted for gang membership.
Gang laws are generally used to target minority individuals. California should not punish individuals because of their culture or lifestyle choices but based on the crime committed.
Gang laws reflect the loss of identity that many young people and minority members feel in modern society. Gang enhancements are not a solution to crime but are part of the problem.
At the Law Offices of Russell Babcock we will fight hard to have gang enhancements dropped from a case when there is no basis for them.