Although a person that is in a gang can be prosecuted for a non-gang related crime they are often viewed by the criminal justice system as being more likely to reoffend. Therefore the proposition that a person is affiliated with a criminal street gang or a prison gang makes the defense of that person more complicated. Therefore person charged with a gang related crime or that is accused of being involved with a gang and charge with a non-gang related crime should find an experienced criminal defense attorney that understands these dynamics. Criminal defense attorney Donte T. Wyatt has a great deal of experience handling cases involving gang members.

What is a Criminal Street Gang?
A criminal street gang is any ongoing organization, association, or group of three or more persons, whether formal or informal:
1. That has a common name or common identifying sign or symbol;
2. That has, as one or more of its primary activities, the commission of one or more crimes listed in Pen. Code, § 186.22(e)(1)-(25), (31)-(33);
AND
3. Whose members, whether acting alone or together, engage in or have engaged in a pattern of criminal gang activity.

In order to qualify as a primary activity, the crime must be one of the group’s chief or principal activities rather than an occasional act committed by one or more persons who happen to be members of the group. Participation in a Criminal Street Gang

Participation in a Criminal Street Gang

The actual participation in a Criminal Street Gang is an offense in and of itself in violation of Penal Code section 186.22(a):

1. The defendant actively participated in a criminal street gang;
2. When the defendant participated in the gang, (he/she) knew that members of the gang engage in or have engaged in a pattern of criminal gang activity;
AND
3. The defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang either by:
a. directly and actively committing a felony offense;
OR
b. aiding and abetting a felony offense.

Active participation means involvement with a criminal street gang in a way that is more than passive or in name only.

Gang Allegations, Enhancement and Specialized Charges


Not only can a person be charged with being an active participant in a criminal street gang if a person commits a crime for the benefit of the gang they can receive enhanced punishment beyond the normal punish for the crime itself.

Gang allegations
Penal Code section 186.22(b)(1) states:

(b) (1) Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal
conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows:
(A) Except as provided in subparagraphs (B) and (C), the person shall be punished by an additional term of two, three, or four years at the court's discretion.
(B) If the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years.
(C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years.

If a person is charged with a gang allegation the admission or true finding of that allegation can drastically effect the persons prison term.

Penal Code section 186.22(d) states:

(d) Any person who is convicted of a public offense punishable as a felony or a misdemeanor, which is committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any
criminal conduct by gang members, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison for one, two, or three years, provided that any person sentenced to imprisonment in the county jail shall be imprisoned for a period not to exceed one year, but not less than 180 days, and shall not be eligible for release upon completion of sentence, parole, or any other basis, until he or she has served 180 days. If the court grants probation or suspends the execution of sentence imposed upon the defendant, it shall require as a condition thereof that the defendant serve 180 days in a county jail.

Recruiting Gang Members:
Under California law it is also illegal to recruit new members to join or participate in gang activity by force or fear.

186.26. (a) Any person who solicits or recruits another to actively participate in a criminal street gang, as defined in subdivision (f) of Section 186.22, with the intent that the person solicited or recruited participate in a pattern of criminal street gang activity,
as defined in subdivision (e) of Section 186.22, or with the intent that the person solicited or recruited promote, further, or assist in any felonious conduct by members of the criminal street gang, shall be punished by imprisonment in the state prison for 16 months, or two or three years.
(b) Any person who threatens another person with physical violence on two or more separate occasions within any 30-day period with the intent to coerce, induce, or solicit any person to actively participate in a criminal street gang, as defined in subdivision (f)
of Section 186.22, shall be punished by imprisonment in the state prison for two, three, or four years.
(c) Any person who uses physical violence to coerce, induce, or solicit another person to actively participate in any criminal street gang, as defined in subdivision (f) of Section 186.22, or to prevent the person from leaving a criminal street gang, shall be punished by imprisonment in the state prison for three, four, or five years.