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
- 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.
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
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.