Violent Crimes – Gang Enhancement Statutory History
Street gangs have existed in LA County for a hundred years but they didn’t receive global notoriety until 1986 when a shoot-out in Westwood Village between Crips and Bloods resulted in an innocent (Asian-American) woman being killed. (Plenty of innocent Black women had been killed in similar circumstances in South LA before that but the media wasn’t interested in covering those stories.)
That killing, coupled with the contemporaneous explosion in gang-related violence in South-Central LA stemming from the new crack-cocaine trade, suddenly terrified for the first time Angelenos who lived outside of gang-affected neighborhoods.
The STEP Act
In response to this suburban panic, in 1988, state lawmakers enacted the Street Terrorism Enforcement and Prevention Act (“STEP Act”), codified at California Penal Code section 186.21, and criminalizing for the first time active participation in a criminal street gang, along with enhancing prison sentences for gang-related felonies.
The CalGang database
A statewide measure to combat gangs was the creation of the now-notorious (see below) database known as CalGang. Implemented by the California Attorney General’s Office, this database, accessible only by law enforcement, keeps a record of every alleged gang member and associate in California. See oag.ca.gov.
For example, by the 2002, CalGang had records on more than 180,000 such individuals. See gould.usc.edu.
Systemic Problems with California’s Gang Database
Not surprisingly, the “documenting” of alleged gang members and associates – particularly by LA County law enforcement personnel – in the CalGang database for purposes of gang enhancement punishments – has created a generations-long nightmare for those unfortunate enough to be entered into it.
This is particularly true for those people – almost all young Black and Latinx men and teens – who had no involvement in gangs or even any criminal activity. For example, one of our recent clients charged with gang enhancement told us that he personally experienced an LAPD officer in South LA pulling him over and threatening to tow his car unless he admitted to being a gang member.
After he did so, the officer field out what’s called out a Field Investigation (“F.I.”) card wherein he wrote down the details of our client’s supposed gang affiliation. And that’s exactly how our client ended up as a “documented” gang member, even though he was not one.
CalGang is so inaccurate, inherently flawed, and outdated that even to this day it still identifies the late music impresario and entrepeneur Nipsey Hussle as a formally inducted member of the Rollin’ Sixties Crips – despite the fact that Hussle had renounced his association therewith many years before his tragic March 31, 2019 murder, and despite his many years of working as an anti-gang activist. See pressfrom.info.
LAPD Scandal Involving Falsifying Information about Alleged Gang Members
It is this very practice of “documenting” gang members and associates that has now come back to haunt LA County prosecutors and police. Specifically, by October 1, 2020, six LAPD officers had been charged with felonies for falsifying information on F.I. cards, wherein they falsely claimed individuals were gang members when they knew otherwise, and which they entered into CalGang.
Dozens more officers, as well as numerous sheriff’s deputies, have now been implicated in the scandal, which currently (as of October 16, 2020) has no end in sight. The most recent officers charged are Rene Braga, Raul Uribe, and Julio Garcia, who are now facing prison time for allegedly falsifying police reports, doctoring false evidence for criminal cases involving the victims (i.e., the falsely-alleged gang members), and conspiring to obstruct justice.
The three officers previously charged are Braxton Shaw, Michael Coblentz, and Nicolas Martinez, who all allegedly falsified at least forty-three F.I. cards. Interestingly, all six so far – with at least eighteen others currently being actively investigated – were all from the Metropolitan Division in DTLA. If convicted, they could all be sentenced to at least three years in prison.
Better yet, since July 2020, District Attorney Jackie Lacey has ordered the dismissal of recent criminal cases that were dependent on these six officers’ testimony, and has confirmed that her office is currently investigating hundreds of these officers’ tainted cases (and possibly those of other officers) going back many years. See latimes.com.
In fact, the scandal has gotten so bad, revealing such endemic corruption in the LAPD, that on or about July 13, 2014, California Attorney General Xavier Becerra revoked LAPD’s access to CalGang and the records the database keeps on approximately eighty-thousand individuals in the county. See latimes.com.
At LADALF, we are convinced that this endemic problem extends to every county and law enforcement agency in the state, and fervently believe the entire CalGang database should be shut down and all convictions relating thereto be reopened and re-examined for abuses. Indeed, to his great credit, San Francisco County DA Chesa Boudin has publicly refused to use CalGang because he believes it has been used in a racist manner to target minorities.
Violent Crimes – Gang Enhancement Statutes
CalGang and corrupt police officers aside, the gang enhancement statutes themselves are highly problematic because they work very much like the U.S. Department of Justice’s federal RICO statute.
Specifically, the ADA prosecuting you needs only to prove that you are an “active” gang member who committed at least one felony – typically during the preceding three years – with at least one other “active” gang member that benefited the gang. This is a very wide net that often includes crimes committed for your own personal use and that had nothing to do with gang activity.
In addition, you can be sentenced under these laws even if you are only a part-time gang member or associate who otherwise has a full-time respectable job and only commits gang-related crimes once in a while or hasn’t committed one in years. In any event, the primary enhancement statutes are as follows:
To be convicted of this crime, which can either be charged as a felony or misdemeanor (a “wobbler”), the prosecutor must prove the following elements:
- you were actively involved in a criminal street gang;
- while doing so, you knew that this gang was currently engaging in a pattern of gang crimes or that it had done so within the preceding three years; and
- you intentionally promoted, advanced, or assisted in felonies committed by that gang.
California Penal Code section 186.22(b)(1) — Gang Enhancement
This crime is always charged as a felony so long as you admit to, or are proven to have done, the following:
- you admit to or are convicted of committing an underlying felony;
- you did so to help that particular criminal street gang; or
- you did so at the instruction of that gang; or
- you did so in affiliation with it; and
- you intentionally did so for the purpose of promoting, advancing, or assisting any of its illegal activities.
Specific Penalties for Violent Crimes – Gang Enhancement Convictions
California Penal Code section 186.22(a) — Active Participation in a Criminal Street Gang
If prosecuted as a misdemeanor, at most you’ll receive a twelve-month county jail sentence if convicted. But if you accept a nolo contendre or guilty plea to, or are convicted of, a felony, and the judge sentences you to a state penal institution, you’ll receive sixteen, twenty-four, or thirty-six months.
California Penal Code section 186.22(b)(1) — Gang Enhancement
If you’re convicted of this felony and receive a prison sentence, you’ll receive the following punishment in addition to any jail or prison time ordered for the underlying felony conviction:
- twenty-four, thirty-six, or forty-eight months;
- sixty months if the underlying felony counts as a “serious felony” conviction as defined in California Penal Code section 1192.7; and
- a decade if the underlying felony counts as a “violent felony” conviction as defined in California Penal Code section 667.5.
Cal. Pen. Code § 186.22(b)(1)(A)-(C).
In addition, in the absence of aggravating circumstances, the judge must sentence you to the mid prison term for the underlying felony. Pen. Code § 186.22(b)(1)(C)(3). One such circumstance would be where you committed the underlying felony within a thousand feet of a school while it’s in session. Pen. Code § 186.22(b)(1)(C)(2).
Finally, this statute sets out dozens of other violent crimes in which the enhancements can increase the punishment all the way to life in prison.
In fact, on or about April 8, 2020, the California Court of Appeals held that a life sentence for a gang enhancement is not a violation of the U.S. Constitution’s Eighth Amendment prohibiting cruel and unusual punishment. See law.justia.com.
California Penal Code section 190.2(a) —Special Circumstances Murder/Capital Murder by Gang Member
Under certain provisions of this statute, if you are convicted of First-Degree Murder (California Penal Code section 190), you can receive life without parole or even the death sentence under the following circumstances:
- you were previously convicted of first or second-degree murder;
- you committed multiple murders as part of the current prosecution (the second or more murders can be second-degree);
- you committed the murder to prevent a witness from testifying or in retaliation for the same;
- you committed the murder during a robbery or carjacking;
- you committed the murder in a drive-by shooting; and
- you committed the murder as an active gang member for the benefit of the gang.
See Pen. Code § 190.2(a)(2), (3), (10), (17), (21), (22).
You can even be sentenced under a special circumstances allegation if you intended to kill a rival gang member but unintentionally killed another person instead. See CALCRIM number 562 (“Transferred Intent”); see also People v. Shabazz (2006) 38 Cal.4th 55, 66.
Violent Crimes – Gang Enhancement Defenses
The following are all effective defenses to the foregoing criminal charges:
- your interactions with the gang were merely “passive”;
- you were a member of the gang but are not currently active;
- you did not commit the underlying felony (or at least have a successful defense to that charge);
- you are admittedly a gang member but at the time were acting on behalf of yourself and not the gang;
- you didn’t know that the gang members/associates were involved in committing crimes for the benefit of the gang;
- the police officer, sheriff’s deputy or detective lied about your alleged gang affiliation or membership or otherwise forced you under duress to falsely admit gang membership;
- you did not intentionally or voluntarily help, assist, or support the gang in committing crimes (e.g., you were forced at gunpoint to be the getaway driver in a robbery);
- you were an active gang member but the crimes you committed to benefit the gang were only misdemeanors;
- the group you belong to is a social club and not a gang (e.g., a custom lowrider car club);
- the gang-related crimes were committed more than three years apart (and, therefore, cannot be considered to be a pattern of gang activity for purposes of gang enhancement); and/or
- the gang-related crimes were all committed on the same occasion (so not a pattern). See the following Judicial Council of California Criminal Jury Instructions (“CALCRIM”):
CALCRIM number 1400 (“Active Participation in Criminal Street Gang”).
CALCRIM number 1401 (“Felony or Misdemeanor Committed for Benefit of Criminal Street Gang”).
CALCRIM number 736 (“Special Circumstances: Killing by Street Gang Member”).
Examples of Violent Crimes – Gang Enhancement Cases
Two alleged gang members each sentenced to more than three-decades-to-life for attempted murder
At the beginning of September 2014, authorities alleged that Carlos Monge (from Fontana) and local Sergio Delacruz (both in their early 20s) drove to Pomona with the goal of killing rival gang members, and shot one several times, severely wounding him. Monge allegedly did the shooting while Delacruz allegedly drove. Afterwards, they drove away from the scene but apparently someone spotted their car and called Pomona PD, who arrested them later that evening after both a car and foot chase.
They were both charged with Deliberate and Premeditated Attempted Murder (“First-Degree Attempted Murder”) (California Penal Code section 664 & California Penal Code section 187(a)) with a potential life sentence, as well as with discharging a firearm from a vehicle. Almost exactly two years later, on September 6, 2016, both men were found guilty following a jury trial on both counts, as well as the Gang Enhancement (Penal Code section 186.22).
On or about April 14, 2017, Monge and Delacruz received thirty-seven-to-life and thirty-two-to-life, respectively. See da.lacounty.gov.
Three Twelfth St. gang members convicted and sentenced for three murders and multiple kidnappings
According to the LA Co. DA’s Office, at the end of September 2009, alleged Twelfth St. gang members Rob Caballero (thirty-four) and Peter Trejo (twenty-nine) murdered rival gangster Armando Vidana after shooting him eight times and dumping his alley in a public place.
Less than a week later, Caballero allegedly became concerned that his cousin Dave Padilla’s teenage friend Lori Minjarez had found out about the murder and was going to inform on Caballero. As a result, Caballero allegedly convinced Lori to get into a car with him, Trejo, and Padilla (age eighteen) and drive to the San Gabriel Mountains where Trejo dug a grave, Caballero choked her, then threw her corpse into it.
The following morning, Cabarello – now paranoid about Padilla informing on him – allegedly convinced him to accompany him to a freeway overpass where he allegedly had Andy Valenzuela (age twenty-three) choke Padilla to death.
Less than eight weeks later, all three suspects were charged with various gang-related crimes, including multiple counts ofFirst-Degree Murder (California Penal Code section 188) and Kidnapping (California Penal Code section 207). It’s unclear why they took so long to be tried but almost five years later, in mid August 2014, they were all convicted of all charges, including three counts of First-Degree Murder with Special Circumstances/Capital Murder (Penal Code section 190.2): murder during a kidnapping, lying in wait, and multiple murders.
In addition, the jury found true that they had committed these crimes for the benefit of their gang. Several months later, Caballero received a death sentence while his co-defendants both received life without parole. See da.lacounty.gov.
Seven alleged gang members from Houston, TX charged with a string of robberies of bank customers
On or about March 18, 2018, more than half-a-dozen alleged gang members from Houston, Texas, were charged with working in concert to commit apparently-armed robberies against bank customers in the South Bay.
The gang allegedly planned the heists out of a hotel in South LA where they were temporarily staying. According to the Torrance PD, the gang would use spotters to identify customers withdrawing large amounts of cash from a teller, then signal confederates waiting outside who would then follow and stick-up the customers after they left.
As a result, the 7 suspects (whose ages ranged from twenty-one to twenty-nine) were prosecuted for a variety of robbery related crimes, including First-Degree Robbery (California Penal Code section 212.5), Second-Degree Robbery (California Penal Code section 211), and Conspiracy (California Penal Code section 182). If convicted of all charges, they would face prison sentences ranging from nineteen to fifty-four years in prison with various enhancements, including a gang enhancement. See da.lacounty.gov.
Example of Violent Crimes — Current Gang Enhancement Case Defended by LADALF
People v. C.J. – Attempted Murder with Gang Enhancement – Facing Life (DTLA — Criminal Courts Bldg.)
In downtown LA, our client is currently facing charges of deliberate, premeditated attempted murder with G.E. for allegedly shooting at a driver. His co-defendant, who is alleged to belong to a separate gang, is being charged with the same offenses and is, therefore, also facing life.
In addition, we currently (as of late October 2020) have at least one other first-degree murder case with gang enhancement out of the Long Beach courthouse.
UPDATE: On January 4, 2021, Ninaz filed and successfully argued a Motion to Dismiss (California Penal Code section 995) based on the fact that the surveillance footage which allegedly showed her client firing at a passing vehicle was of poor quality and failed to provide any evidence that the client had intended to kill the purported victim.
Result: charge dismissed.