Accusations of gang activity or criminal conspiracy are serious and potentially life-altering allegations. Gang-related offenses carry severe penalties”almost always including jail time”under both California and federal laws.
If you are facing conspiracy or gang-related charges, the help of an experienced criminal defense attorney is invaluable. The Law Office of Peter Blair is committed to making this difficult situation as easy for you and your loved ones as possible. With attorney Peter Blair, you can expect confidentiality, compassion, and a high level of skill and dedication. Mr. Blair dedicates 95 percent of his practice to litigation, meaning your case will be thoroughly prepared by an attorney with extensive experience in the courtroom. Call (619) 357-4977 or contact us online to schedule your free, confidential consultation.
Participation in a gang is prohibited by Penal Code 186.22(a) PC. California law defines gang participation as œany person who actively participates 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. Participation in a gang is punishable by imprisonment in county jail for up to one year or imprisonment in a state prison for 16 months, two years, or three years.
Criminal conspiracy is defined by Penal Code 182 PC as two or more people agreeing to commit a crime and one person committing an œovert act in furtherance of that agreement. An œovert act means any steps or actions taken by one (or more) of the conspirators in pursuit of the agreement. In other words, it is not enough to prove that two or more people made a criminal agreement”at least one conspirator must take a step beyond the initial agreement toward criminal activity.
The overt act in question does not have to be a criminal act in and of itself, nor must it constitute the crime itself. That is, the prosecutor does not have to show that the criminal activity itself occurred”he or she only has to prove that an agreement was forged and someone made an overt step in the direction of committing the crime. For example, say three gang members decide to kidnap a rival drug dealers girlfriend. Before they leave, one of them calls the rival dealers apartment to make sure his girlfriend is home alone. Deciding to kidnap her constitutes a conspiracy, and calling ahead constitutes an overt act; although making the phone call itself is not a crime, it counts as an overt act when proving the conspiracy.
Penalties, Punishment, and Sentencing
A huge array of offenses”with a wide variety of penalty schemes”can fall under the umbrella of œgang-related activity.
Criminal acts, such as robbery or kidnapping, carry a certain penalty and sentence under California law. But when the criminal act is committed in the name of a gang, the accused is subjected to certain sentencing enhancements under California and federal law. These sentence-enhancing statutes include:
The California Gang Sentencing Enhancement is found in Penal Code 186.22(b). The California Gang Sentencing Enhancement, also known as the STEP Act, seeks to punish gang members and their associates more harshly than those who commit the same felonies without gang affiliation. The STEP Act establishes additional jail time for gang-related felonies; in other words, you could face prison time for the original felony, as well as additional time for the felony being gang-related.
The California Gang Sentencing Enhancement applies to œany person who is convicted of a felony 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. Upon conviction of the original felony, the defendant could face two, three, or four additional years in prison.
However, serious and violent felonies carry an additional sentencing enhancement. Serious felonies (as listed in Penal Code 1192.7 and 1192.8) include murder, rape, robbery, kidnapping, and arson, and are punishable by an additional five years in prison. Violent felonies (as listed in Penal Code 667.5) include murder, mayhem, rape, kidnapping, carjacking, and threatening witnesses, and are punishable by an additional ten years in prison.
It is important to note that you do not have to be considered an œofficial member of the gang to be punished under the STEP Act. Those who regularly assist gang members, such as girlfriends, drug suppliers, or other close associates, can be found guilty of gang-related activity if they act for the benefit of the gang in any way. This can include transporting drugs or firearms for the gang, helping a gang member threaten someone, or assisting with the gangs criminal activity in any way.
The Criminal Street Gangs statute is outlined in Section 521 of Title 18 of the U.S. Code. The Criminal Street Gangs statute provides for enhanced punishment of crimes that were committed to improve ones position in a gang or further the activities of the gang as a whole.
Other federal laws seek to punish gang members for multiple felonies or violent crimes committed on behalf of a gang. These laws include:
The Racketeer Influenced and Corrupt Organizations Act, a.k.a. RICO, is covered by Sections 1961-68 of Title 18 of the U.S. Code. RICO establishes enhanced penalties for certain acts committed as part of a criminal organization, such as a gang. Under RICO, you are subject to increased penalties for committing two or more crimes from a predetermined list of state and federal offenses if the crimes were committed as part of a criminal organization (such as a gang). RICO offenses include murder, kidnapping, arson, bribery, drug trafficking, and gambling. RICO violations are punishable by up to 20 years in prison, a fine of up $250,000, forfeiture of profits from illegal activities, and even life imprisonment in some cases.
The Violent Crimes in Aid of Racketeering Act, a.k.a. VICAR is found in Section 1959 of Title 18 of the U.S. Code. VICAR deals with criminal activity that is conducted in order to join a criminal organization or move up within a criminal organization. Under VICAR, you could face a prison sentence of up to 30 years and fines up to $250,000. (The 30-year maximum can be increased to life imprisonment or the death penalty in murder cases.)
An experienced criminal defense attorney will be able to outline a variety of defenses against conspiracy or gang charges depending on your individual situation.
Defenses against criminal conspiracy charges can include:
- Lack of agreement: no agreement to commit a crime actually existed
- Lack of overt act: there was no overt act in furtherance of the crime (thoughts and plans can not be considered criminal actions, so there must be an overt act to prove conspiracy to commit a crime)
- Withdrawal from the conspiracy: you withdrew from the conspiracy before someone committed an overt act (and communicated your withdrawal to co-conspirators)
- False accusation: you were wrongfully accused of a crime or the subject of mistaken identity
Defenses against gang-related crimes include:
- Lack of active participation: for certain offenses, like gang participation under Penal Code 186.22(a) PC, the prosecutor must prove that you actively participated in the gang and its activities.
- Acting outside of gang commitment: you can avoid gang-related sentencing enhancements if you can prove the felony at hand was committed for your benefit alone (rather than the benefit of the gang)
Contact an Experienced San Diego Criminal Defense Attorney
Allegations of gang activity are serious and life-changing accusations. Without a well-trained, experienced criminal defense attorney, you could face significant prison time and irreparable damage to your reputation. If you are facing charges of conspiracy or gang-related offenses, contact the Law Office of Peter Blair. The criminal court system is complicated and difficult to navigate without the guidance of a skilled criminal defense attorney, and Peter Blair is here to help. The Law Office of Peter Blair is committed to securing a fair trial and keeping you informed of your options throughout the legal process.
Peter Blair is prepared to investigate your case thoroughly and mount an aggressive defense on your behalf. Call (619) 357-4977 or contact us online to schedule your free, confidential consultation.