There are many tools the prosecution has at its disposal to prosecute individuals in a gang related case.


Gang enhancements allow for additional penalties when a felony is committed “for the benefit of, at the direction of, or in association with any criminal street gang.”  (CPC § 186.22)  This enhancement packs a punch.  It can add 5-10 years onto a prison sentence.  It can also add 25 years if the underlying felony is a murder.  To prove its case the government must show that the defendant specifically intended to assist further or promote the gang in the commission of the crime.


There are many defenses to the gang enhancement.  Some of the most common are:

  • Claim the crime was committed for personal reasons – In a gang case, the defense often claims that the crime was of a personal nature and actually had nothing to do with the gang.  For example, perhaps a gang member punched a person because that person owed him money on a personal debt.  This crime is not “for the benefit of the gang.”
  • Claim of disassociation – Often times the defense can argue that the defendant is not even a member of the gang.  The prosecution’s gang expert might have little or no evidence the accused associates with other gang members, has gang tattoos, uses the signs and symbols of the gang, or is otherwise associated with the gang.  In some case, the defense can produce evidence that the person was once in the gang, but is no longer participating.  Essentially, they are an ex-gang member not an active member.
  • Legal defenses on the underlying felony – Even when a gang allegation is charged, the defense still has all the defenses to the underlying felony as it normally would, including self defense, necessity, duress, insanity, negation of mental state and other elements of the crime.


A person commits a crime when they actively participate in a gang.  (CPC § 186.22(b)(1).)  The crime of active gang participation can land you in jail for up to three years.  This crime makes it illegal to actively participate in gang activity and willfully promote, further, or assist in any felonious criminal conduct by members of that gang.  (CPC § 186.22(a).)  This crime can be charged independently without an underlying felony.  However, the prosecution must show an aider and abettor theory on a gang related felony to obtain a conviction.


  • Claim of disassociation – This is always a defense in gang cases.  As discussed earlier, the defense can always produce evidence of lack of membership in a gang or expired membership in a gang.  A gang tattoo may well be from twenty years ago.
  • Claim of no specific intent – This is a specific intent crime.  The defense can challenge the prosecution’s evidence and produce its own evidence that the defendant did not specifically intend to “promote, further or assist” criminal activity.
  • Traditional legal defense – The same legal defenses in traditional crimes apply here as well. For example, applicable defenses include self defense, necessity, duress, insanity, or negation of an element of the offense.


A person is guilty of gang conspiracy and criminally liable for a crime committed by the gang where he or she is an active gang participant, has knowledge of the gang’s criminal activity and willfully promotes, furthers, assists or benefits from that crime.  (CPC § 182.5.)  This expansion of criminal liability creates an untenable situation for people who know, socialize, go to school with, or do business with people who are in a gang.  This crime leaves the door open for a person who casually knows a gang member to be held liable for crimes he or she had nothing to do with.


  • Claim of disassociation – (see above)
  • Claim of no specific intent or knowledge – This law requires that the conspirator willfully promote, further, assist or benefit.  The use of the word “willfully” means that the prosecution needs to prove intent.  The defense can challenge the evidence of intent and produce its own evidence negating intent.
  • Claim of no benefit – If the prosecution is relying on a theory that defendant benefited from the target crime, the defense can challenge this theory.  The defense can attack any witnesses that give expert opinion on the matter and appeal to the jury’s common sense to show there were no benefits for the defendant.
  • Constitutional challenge – California Penal Code § 182.5 has not yet been challenged for constitutional validity.  The statute still has unresolved issues of whether it’s valid at all.  Legally it may be too vague or ambiguous to hold up under constitutional scrutiny.  It may violate First Amendment freedom of speech and association.  It also might be too broad; criminalizing otherwise lawful conduct.
  • Traditional legal defenses – (see above)

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