Gang Cases in California
One of the greatest challenges that lawyers face as a criminal defense attorney is when your client is accused of being in a street gang and committing a crime in association with a gang. California law severely punishes crimes that are committed in association with an alleged criminal street gang.
The California Penal Code prohibits persons from participating in any criminal gang or committing criminal activity with knowledge that the participants are engaging in or have engaged in a pattern of criminal gang activity. The law also prohibits persons from willfully promoting, furthering, or assisting in any felonious criminal conduct by members of a gang. Participating in an act 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, will enhance that person's sentence by two, three, or four years at the court's discretion. If the person assists or participates in a serious felony, the person shall be punished by an additional term of five years.
The jury instruction regarding street gang activity is complex, but it is important to note that a conviction requires only that the prosecutor prove that the defendant actively and knowingly participated with a criminal street gang and that willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang either by directly and actively committing a felony offense, or aiding and abetting a felony offense.
A person need not be an actual gang member to be guilty of violating gang laws. As long as he has more than a nominal or passing involvement with the gang, knowing of the gang's pattern of criminal activity, and aids and abets a felony committed by gang members, he can be convicted. Thus, a gang enhancement can be added to crimes by persons who are not even gang members if they commit a crime in conjunction with or to benefit other gang members. The gang enhancement can add 5 or 10 years to some felonies or make other felonies that don't otherwise carry a life sentence, carry a life sentence.
The problem is thatgang enhancement cases are difficult to defend because the charging of a gang enhancement allows the prosecution to present gang evidence from a gang expert. The gang expert is normally a police officer who has worked a gang detail. Right or wrong, they have been trained to recognize signs of gang membership as well as associations - wearing a particular gang's colors, having tattoos that are similar to gang tattoos, being seen with certain gang members are all signs of gang membership of association. As one police officer told me: "I was not there when the kid was jumped in, but everything I saw led me to believe that he was a member of (One particular) gang. I have had numerous parents tell me - “My son is not a gang member." My response is: "You don't have to be. All you have to do is associate with gang members, have knowledge of what the gang is about, and be present when something bad goes down."
Gangs are generally criminal enterprises. That means that actual members are required to make some kind of contribution (often monetary) to the organization. Gang members are predators. They use idiot Wanta be’s to do their dirty work. Gang members try and talk Wanta be’s into selling drugs for them, or letting them use your phone to call another gang member or a gang associate. Why do they want to use your cell phone instead of their own? Because they are probably on probation and the terms of their probation includes strict restrictions which generally include the prohibition against communicating with other gang members. If they are on probation, they are also required to submit to a search and seizure at any time day or night. So if a gang member on probation gets picked up, his phone will be examined and if the phone numbers of any of his Homies are on his phone, he is headed for jail.
When gang members gather in one place, one or more are usually carrying weapons. When two rival gang groups come together on the street, threats of violence or brandishing of firearms often occur. These situations can get very ugly. Shots are fired and someone, sometimes an innocent bystander, gets shot or killed. These types of stories are published or told by the news media very day - and it angers normal law abiding citizens that are likely to act as jurors. “They wouldn’t have been there if they weren’t a gang member”.
If you or your son is hanging around gang members, there is a significant chance that they will get caught up in this type of incident and be arrested. Gang members have no honor. They often try to "punk" a non-member into doing something illegal. Recently, I defended a person who a gang member tried to "punk" into shooting and killing another person. Should a gang member be in possession of a weapon and anticipate a chance that he will be caught with the weapon, he will often slip it into an unsuspecting person's back pack or ditch it in an innocent persons car.
Police officers are not going to take chance with crimes involving multiple suspects. Their job is to arrest everyone and let the court sort out the law and the facts. Police gang experts are called upon to put you in prison. The criminal justice system is aggressive and adversarial. A prosecutor will use the officer's perception of the gang and gang members to overwhelm the jury with fear. Under the guise of supplying expert testimony, police gang experts will say almost anything to sway a jury against an accused gang member or associate. They use vague phrases like: "This information links this person, who in my opinion is a gang associate, to this double homicide." Lawyers who defend alleged gang member, often object to this testimony or try and make motions to limit or exclude what may lead into a smear campaign. An attorney, expert in handling gang cases, will make every effort to limit gang testimony and use every effort to cross-examine the expert to show that he is unqualified and bases his opinions on speculation and not fact. Even the best lawyer cannot anticipate how a case will resolve. The decision is made by judges and juries - people whom you have never met before and do not know what kind of person you are. Many good young people wind up in tragic situations simply because they are ignorant to the principle of situational avoidance. What is situational avoidance? The ability to foresee a situation that has the potential of becoming disastrous and avoiding it.
“An ounce of prevention is worth a pound of cure”. If you are under the age of 30, don't dress like or hang around people that you know are gang members. . If you do, you will be perceived as one. There is a high price to pay just to look COOL. Be careful with your back pack or personal items….don't let anyone have access to it. Don't carry other people's back packs or knapsacks. Be careful with your phone. Listen to your parents - they usually have your best interest at heart. Parents, talk to your children. Know who they are hanging around with and try and teach them the concept of situational avoidance. Having practiced law for 35 years I can confirm our criminal justice system is not always JUST. The best choice is to not get dragged into it.