Gang Allegations

What is the difference between a felony and misdemeanor vandalism charge? 
Penal Code §594, vandalism, covers all crimes involving the destruction of property including defacement with graffiti.  Generally, if the damage done is worth less than four hundred dollars ($400.00) the charge is a misdemeanor, but if the damage exceeds four hundred dollars ($400.00) it may become a felony. 

Often if the damage done is worth less than four hundred dollars ($400.00) there is a possibility of having the case dismissed pursuant to Penal Code §1377 and 1378.  This is an option if the alleged victim is willing to compromise the matter and usually requires the defendant paying for any damage done to the victim’s property.

What is a Gang Enhancement?
However, the seriousness of a simple graffiti case can be much more significant if law enforcement claims that the crime was committed on behalf of a criminal street gang pursuant to Penal Code §186.22.  This code section makes the matter a felony and exposes the defendant to three additional years in prison on top of the sentence received for the actual crime.  Gang enhancements also affect those that are granted probation.   Even if the defendant is granted probation for the actual crime, he faces a mandatory sentence of one hundred-eighty (180) days in jail if a gang enhancement is charged.

How will a Gang Enhancement Affect Me?
The prosecution of what are considered “gang crimes” is increasingly aggressive.  There are many reasons for this including the proliferation of gangs and seriousness of their crimes, public outrage and law enforcement funding, but one thing has become very clear -  if someone is charged with “promoting, assisting or furthering any criminal conduct by gang members” local law enforcement will seek the harshest of penalties under the law.  A gang enhancement under Penal Code §186.22 allow such additional penalties as: additional four (4) years for a non-serious felony, and mandatory fifteen (15) years to life imprisonment for the commission of a violent felony on behalf of a criminal street gang.  Additionally, gang charges and the underlying seriousness of the principal offense are often used to justify charging minors under the age of eighteen (18) as adults, thus making them eligible for the severe sentences described above.

Local law enforcement often over prosecutes these cases by broadly categorizing anyone remotely associated with a gang or near the scene of the crime at the moment it occurred as gang member.  Understanding the criteria for what constitutes a “criminal street gang” who qualifies as a “member” and “accomplice,” and the liability for the underlying crime are essential to a competent defense.  Furthermore, knowledge and experience as to what local law enforcement considers to be a gang, the experts and evidence they commonly use to establish membership, and conduct they consider to be in furtherance of a “pattern of criminal gang activity” are critical to the defense of any gang case.  Having an attorney, an investigator, and even a defense expert capable of rebutting the prosecution’s “gang” theory is the way we approach all of our defenses to charges alleged to be gang related.

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