WALKING THE GANGPLANK
In 1988, the California Legislature enacted the STEP Act; STEP stands for “Street Terrorism and Enforcement.” This legislation added penalties for participation in a street gang (Penal Code §186.22(a)) and provided for sentencing enhancements [1] (Penal Code 186.22(b)) to a felony conviction that is found to be connected to criminal street gang activity. Since the STEP Act was enacted, committing a crime as a gang member or even just for the “benefit” of a street gang really is like walking the gangplank because the Act can add decades on to a defendant’s prison sentence.
STEP enforcement is law enforcement’s—and by extension the prosecutor’s—own little fiefdom. Once labeled a gang member by law enforcement, always a gang member.
So how does it work?
When a person gets arrested for a crime and the prosecution alleges that the crime was gang affiliated, the district attorney will add any number of gang enhancements. Often gang affiliation is alleged by the prosecution based on nothing more than field interview or information cards that law enforcement gather on individuals while working the beat. The field interview cards are completed by law enforcement when they encounter an individual, whether on a Terry-type stop (Stop and Frisk), pursuant to an arrest, or just walking around talking to suspected gang members. The cards contain identifying information about the individual and information about the individual’s gang affiliation (or association with gang members). The card information is put into a statewide database, known as “CalGang.” (A recent audit of the CalGang database has revealed that the database is replete with erroneous information. In my next blog post, I will discuss the problems with the CalGang database. )
If an individual reports to an officer, even if just during a casual conversation in the field, that he or she is a member of a particular street gang, that alone is enough evidence to prove the gang enhancements in court under STEP. Why would someone admit to gang affiliation to a cop? There are many reasons, for example, the individual may be a juvenile who is boasting, maybe the individual has been arrested for some crime and does not want to be housed with inmates from a hostile neighborhood, or perhaps the words of the individual during the field interview are twisted to suggest a gang membership (it happens).
Once in the data base, those field cards will be offered in evidence on virtually any offense for which the individual is subsequently charged—even when the crime has no connection to gang conduct. What’s more, even if an individual claimed gang membership only once and that is put into the data base, and even if that individual did this when he or she was say 14 years old and thought it seemed cool at the time, and even if that individual is now say 28 years old and has nothing to do with the gang, chances are he or she is going to be tagged by the prosecution as a gang member….forever.
Inclusion in the CalGang database is not the only way the prosecution may prove that the crime was gang related. Often a defendant will find him or herself slapped with gang enhancement allegations simply because the prosecution alleges that the defendant committed a criminal act for the benefit of a gang, even though the defendant is not a member and has never been a member of a gang.
Since the enactment of STEP, law enforcement, the district attorney, and even the courts have increasingly used the most tenuous of gang inferences to add years to sentencing judgments. In my next posts, I will discuss the CalGang database, and its flaws, in more detail.
William Weinberg is an experienced criminal defense attorney. Gang-enhanced charges require the attention of an experienced criminal defense attorney. If you have any questions regarding your gang-enhanced charges or any criminal defense matter, please feel free to contact Mr. Weinberg to set up a confidential consultation without charge at www.bill@williamweinberg.com or (949) 474-8008.
[1] In a recent California Supreme Court decision, People v. Fuentes, the Court held that the sentencing court has the discretion to strike these enhancements. Prior to this decision, many courts held that the enhancements were mandatory. The Fuentes decision will be the subject of a later post on this blog.