Penal Code § 186.22(a) makes it a crime for any person “to actively participate in a 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 the gang.” Just being in a gang is a wobbler, meaning it can be punished as a misdemeanor by up to one year in county jail, or as a felony, but up to three years in state prison.
In a Nutshell: Penal Code § 186.22(a) prohibits one from simply being in a criminal street gang and actively promoting, supporting or furthering the gang’s criminal activity. It is not a sentencing enhancement. It is a wobbler, meaning it can be prosecuted as a misdemeanor or a felony.
When the person “promotes, furthers or assists” in criminal conduct by members of the gang by committing a crime, Penal Code § 186.22(b) applies. Under 186.22(b), additional punishment is applied as a sentencing enhancement to run consecutive (not concurrent) to the sentence for the underlying crime or crimes, depending upon the crime, and, once in prison, defendant is not eligible for parole until certain minimum time periods.
If the underlying crime is not a serious or violent felony, and not on a list of enumerated crimes (listed below), then the additional punishment is two, three or four years in state prison.
If the underlying crime is a serious felony, as is listed under Penal Code § 1192.7, defendant faces five additional years in state prison.
When the underlying crime is a violent felony, as is listed under Penal Code § 667.5(c), defendant faces ten additional years in state prison.
When the underlying crime is first degree robbery inside a home with assistance of other defendants (Penal Code § 213(a)(1)(A)) carjacking (Penal Code § 215), shooting at an inhabited building or occupied car (Penal Code § 246) or shooting a gun from a car with intent to cause great bodily injury and causing such injury (Penal Code § 12022.55), then defendant faces a consecutive sentence of life in prison with a minimum indeterminate term of at least fifteen years.
When the underlying felony is extortion (Penal Code § 519) or dissuading a victim or witness through threats (Penal Code § 136.1), then defendant also faces a consecutive sentence of life in prison, but with a minimum indeterminate term of at least seven years.
If the judge decides to suspend imposition of the underlying sentence (“joint suspended”) for defendant, then defendant still must serve a minimum of 180 days in county jail because of the gang allegation.
What exactly is a “criminal street gang” under this statute? It means 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 enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (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 paragraphs referenced above, i.e. (1) to (25), as well as (31) to (33), it should be noted, must be part of a “pattern of criminal activity,” which means “the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter (January 1, 2022) and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons.” The offenses include:
(1) Assault with a deadly weapon or by means of force likely to produce great bodily injury, as defined in Penal Code § 245;
(2) Robbery, Penal Code § 211;
(3) Homicide or manslaughter, as defined at Penal Code § 187, et seq.;
(4) The sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture controlled substances as defined in Health & Safety Code §§ 11055, 11056, 11057, and 11058;
(5) Shooting at an inhabited dwelling or occupied motor vehicle, Penal Code § 246;
(6) Discharging or permitting the discharge of a firearm from a motor vehicle, Penal Code § 12034(a) and (b) (until January 1, 2012) and after that date as defined at Penal Code § 26100(a) and (b):
(7) Arson, Penal Code § 450, et seq.;
(8) Intimidation of witnesses and victims, Penal Code § 136.1;
(9) Grand theft, Penal Code § 487(a) or (c);
(10) Grand theft of any firearm, vehicle, trailer, or vessel.
(11) Burglary, Penal Code § 459;
(12) Rape, Penal Code § 261;
(13) Looting, Penal Code § 463;
(14) Money laundering, Penal Code § 186.10;
(15) Kidnapping, Penal Code § 207;
(16) Mayhem, Penal Code § 203;
(17) Aggravated mayhem, Penal Code § 205;
(18) Torture, Penal § 206;
(19) Felony extortion, Penal Code § 518 and § 520;
(20) Felony vandalism, Penal Code § 594(b)(1);
(21) Carjacking, Penal Code § 215;
(22) The sale, delivery, or transfer of a firearm (as defined at § 12072 until January 2, 2012 and after that date at § 27500, et seq.);
(23) Possession of a pistol, revolver, or other firearm capable of being concealed upon the person in violation of Penal Code § 12101(a)(1) (under January 1, 2012) and thereafter, in violation of § 29610;
(24) Threats to commit crimes resulting in death or great bodily injury, Penal Code § 422;
(25) Theft and unlawful taking or driving of a vehicle, Vehicle Code § 10851;
(31) Prohibited possession of a firearm in violation of Penal Code § 12021 (until January 1, 2012) and thereafter, Penal Code § 29800;
(32) Carrying a concealed firearm in violation of Penal Code § 12025 (until January 1, 2012) and thereafter, Penal Code § 25400; and /or
(33) Carrying a loaded firearm in violation of Penal Code § 12031 (until January 1, 2012) and thereafter, Penal Code § 25850.
For more information about the sentencing enhancement for one’s promotion, assistance or furthering the interests of a criminal street gang (Penal Code § 186.22), please click on the following articles: