Gang Activity or Allegations
One of the toughest cases to defend in Los Angeles criminal court is any charge that contains an allegation that the accused is associated with a gang or a gang member. Almost 25 years ago in 1988, the State of California enacted the “California Street Terrorism Enforcement and Prevention Act” which provides sentencing enhancements to increase a defendant’s maximum potential sentence as a result of the defendant’s prior record, use of some form of weapon in the current offense, or if the current offense included great bodily harm.
Penal Code Section 186.22
Penal Code Section 186.22(a) makes it an alternate misdemeanor or felony to participate “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…”
This California’s gang statute defines a criminal street gang as: “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts [some 20+ specified felonies listed in 186.22(e)], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.”
The “gang enhancement” defined in California Penal Code Section 186.22(a)-(j) seeks to add substantial additional jail/prison time under the argument that the the defendant’s current offense was committed to further “gang” activity. This typically uses the defendant’s prior criminal record and life history which makes for a difficult case for any criminal defense attorney to mount a strong and effective case.
Most often used in charging is Penal Code section 186.22(b) which is the gang enhancement charge can add time to the penalty for felonies “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…” This is so broadly written that many non gang members can be prosecuted and sentenced using this law for committing a crime in conjunction with or to benefit “other” gang members. Unfortunately for those charged, this “gang allegation” enhancement can add 5 to 10 years to some felonies or convert other serious crimes to a life sentence.
A “Gang Expert” is almost always a part of the Prosecution’s Case
In order to prove a gang case, a “gang expert” is called to testify on behalf of the prosecution in almost every “gang allegation” case. What makes defending Gang Enhancement cases much more difficult is that the government is allowed to call in “gang experts” to testify about gangs’ threat to every man woman and child and how society is at extreme risk because of gangs and gang activity. The most common “gang expert” is typically a current or retired law enforcement officer who had worked gang detail. The prosecutor will demonstrate and make a case that gangs, like the mafia, will intimidate witnesses who might otherwise come forward, and use these arguments why the jury should convict the accused gang member or person somehow “connected” to a gang.
Gang Enhancement Defense Strategies
Few defense attorneys consult with a qualified Gang Expert for each case involving gang allegations, but Nicholas Rosenberg does. A defense Gang Expert can challenge the assumptions made by the Prosecutor’s Gang Expert, very often knows more about the alleged gang from the community point of view, and can interview more people about the real history of the client than appear in the police report. Defense experts are quite familiar with the Prosecutor’s Gang Experts and can assist in the preparation for trial.
There are some good defense strategies that a good criminal defense attorney can bring to bear on a gang enhanced prosecution effort. We will often insist that the government furnish all of their “gang evidence” about the accused and ALL involved parties. We will request and scrutinize the credentials of all of the “gang experts” including line-by-line prior testimony about the same gang. Gang experts often say controversial things, allow their own biases to slip into much of their prior testimony which will go a long way to paint a picture that the “expert” is not “detached” but has a dog in the fight to help convict anyone associated with any gang or group. The gang experts credentials, his history, his past statements, can be aired out in the preliminary hearing and this testimony can then be used at trial to further undermine the overall credibility of the government’s case. We can make motions to toss out much or all of the “experts” testimony and/or we can cross-examine the expert on the stand to further erode the prosecutor’s case.
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