Gang Crimes in San Diego

Sentencing Enhancements for Gang Crimes

Sentencing enhancements are allegations that are added to the charging document in order to increase a defendant’s maximum potential sentence as a result of his/her prior record, use of some form of weapon in the current offense, or the fact that serious or great bodily injury resulted from the criminal conduct. While obviously serious, these allegations are usually resolved during the investigation, disposition, or litigation of the underlying facts of the case. In contrast, the “gang enhancement” outlined California Penal Code Section 186.22(a)-(j) seeks to add substantial additional prison/jail time under the argument that the current crime was committed to further “gang” activity. This calls into question the defendant’s prior life history and can seriously complicate the defense of even the simplest of felony charges.

The California gang statute has often been referred to as “bulletproof” by defense attorneys that do not have the required experience and/or insight into how to challenge this difficult issue. As a result, some attorneys “throw in the towel” almost immediately into any case wherein they see the gang enhancement alleged. In reality, it is only a small number of cases wherein the use of the gang statute is not vulnerable to some form of challenge. These are cases wherein the prosecution has a legitimate gang with a longstanding prior history; an actual gang member that has a long history of claiming and/or acting on behalf of that gang; and an underlying crime that clearly was committed to benefit that gang. Until the prosecution limits their use of this statute to just those cases and stops trying to incorrectly leverage larger sentences through the misuse of this statute in all other cases, an experienced defenseattorney can successfully challenge the use of this statute against their client.

There are three general ways to challenge the use of the gang statute against a particular defendant:

  • The first focuses specifically on the application of this statute to a specific defendant based upon his prior criminal history and/or actual gang history.
  • The second relates to the prosecution’s use of the “gang expert” in order to improperly fill in factual holes in their case with “expert predictions” regarding gang behavior.
  • The third focuses specifically on conflicts or inconsistencies between past and current testimony of the particular “gang expert”.

Defendant Specific Challenge

This form of attack focuses specifically on the application of the gang statute to a particular defendant. Where the prosecution has alleged that the defendant is a gang member, the defense seeks to portray the defendant as undocumented, an associate or acquaintance of some members of the particular gang, or someone who has long ago given up actual gang involvement. Under any of these arguments, the particular defendant would not be a proper target for the gang statute.

Undocumented Gang History

The defendant has no prior documented prior history of gang involvement and while may have been around actual gang members at the time of the offense, he was not involved for the benefit of the gang. An example of this would be the situation wherein an undocumented defendant is at a party or gathering with other defendants who may be documented gang members. While there some form of altercation breaks out as a result of something that had absolutely nothing to do with the gang. But because some of the parties on either side of the altercation may have been gang members, it is charged as a gang offense.

Focus: Complete lack of gang documentation history. Underlying offense can be attributed to some facts/purpose that was not specifically intended to benefit a particular gang.

Gang Associate

The defendant knows or occasionally hangs out with persons who are known documented gang members. However, he is not an actual documented gang member and his involvement in the charged offense was not intended for the benefit of a particular gang. An example of this would be the situation wherein a defendant with no prior gang history gets arrested with two other documented gang members during the commission of some form of robbery or burglary. In this instance, the defendant would be little more than an occasional associate and the actual underlying crime was one of opportunity intended to result in the acquisition of stolen money or property and not simply the furtherance of some specific gang. More often than not, the prosecution pays far too little attention to the distinction between a simple gang associate versus a truly hardened and documented gang member.

Focus: No true gang documentation history. Instead, a short or uneventful history of being around gang members occasionally while living in a particular neighborhood. Underlying offense can be attributed to some facts/purpose that was not specifically intended to benefit a particular gang.

Retired Gang Member

The defendant was once long ago documented or active in a particular gang. However, he has not been documented as active for a long time and was simply involved in an incident that may have involved other gang currently active gang members. Using the same party example as discussed above, a long ago retired gang member becomes involved with other current gang members in a serious altercation that arose as a result of some issue at the party that had nothing to do with gang activity (i.e. a woman). In this instance, the defense must focus the attack on the fact that once documented as a gang member, it is nearly impossible to be removed from that classification.

Focus: No true gang documentation history for a long period of time prior to the current allegations. Underlying offense can be attributed to some facts/purpose that was not specifically intended to benefit a particular gang.

Expert Testimony Challenge

Unlike the defendant specific challenge discussed above, this challenge focuses on whether the prosecution intends to properly use gang expert testimony. Or instead, they intend to misuse such testimony to fill in factual gaps in their case with “expert predictions” on gang activity. Here, the argument focuses on the fact that “gang experts”, unlike most true scientists or doctors, are offering testimony that has no basis in some form of true science, psychology, or sociology. Instead, “gang experts” are usually cops who are seeking to offer expert testimony that would allow them to speak to far more issues than normally admissible. The only properly admissible purpose for such testimony is the situation wherein the testimony is intended to help the judge or jury understand significance of evidence and put it in context of gang behavior/custom. This form of testimony is completely improper where the “gang expert” seeks to fill in factual gaps or leap to conclusions that suggest he/she can accurately predict individual gang member behavior at any given time simply based upon his training and experience.

Expert Specific Challenge

This challenge focuses specifically on a particular “gang expert’s” opinion and how it conflicts with prior testimony he/she has given on same or similar issues in the past. More often than not, experienced attorneys are well acquainted with the prior history and opinions of particular “gang experts” that are regularly used by the prosecution. And when defense attorneys have done their homework on a particular expert, he/she may well find prior cases wherein this particular expert has said or done something that conflicts with their current opinion or the current position they are taking as to the defendant. Or even better, they may be aware that a particular “gang expert” will say or do anything in order to protect “his/her” case.

In closing, there is no such thing as a case wherein some form of challenge cannot be levied on behalf of a particular defendant. However, the success of any challenge will be limited to the experience and/or background of your particular defense attorney. It for this reason that careful selection of an attorney with the proper experience/background is essential when facing the serious penalties created by the California gang statute.