As the term suggests, a gang enhancement allows a judge to add additional, consecutive time to the maximum penalty for crimes if it is found that the defendant committed the crime as a result of his or her membership in a gang. While the California Street Terrorism Enforcement and Prevention Act makes it a crime just to be an active member of a criminal gang, a gang enhancement requires an underlying felony conviction. If you are convicted of an underlying felony, the prosecutor will request or the judge will add more time to a sentence if a gang enhancement can be proven.
If a defendant is convicted of a felony perpetrated in association with, for the benefit of, or under the direction of a criminal gang, with the specific intent to advance the interests of the gang in its criminal ventures, a judge may add a gang enhancement to the sentence. According to California gang enhancement rules a judge may add:
An additional two, three, or four years at the judge’s discretion upon conviction of a felony
An additional 5 years if conviction is for a serious felony
An additional 10 years if conviction is for a violent felony
An additional 15 years if the felony involves a home-invasion robbery, carjacking, shooting into an inhabited dwelling or shooting from a motor vehicle
Potential life sentence if the defendant is convicted of a murder that occurred during a drive-by shooting, carjacking, or home invasion
Life sentence if the conviction carries a potential life imprisonment
Serious felonies include, but are not limited to certain drug crimes, assaulting a peace officer with a deadly weapon or firearm, shooting at an occupied dwelling or car, making certain criminal threats, and assault with a deadly weapon by an inmate.
Violent felonies include, but are not limited to certain sex crimes, extortion, any felony that inflicts great bodily injury, and threatening witnesses. Many offenses are both serious and violent felonies. In this case, the longer sentence will apply.
Additionally, Section 186.22(d) allows prosecutors to turn any misdemeanor into a felony if the misdemeanor was perpetrated in furtherance of, for the benefit of, or at the direction of a criminal gang.
Being charged with a gang enhancement does not mean that it will ultimately be applied to your sentence. With the help of a qualified criminal defense attorney, you should be able to assert several defenses to avoid a gang enhancement to your sentence.