California Penal Code [CPC] §186.22(a) – Criminal Street Gang Activity – Section 186.22 of the Penal Code makes it illegal to participate in a criminal street gang and willfully promote, further, or assist in any felony committed by any member of the gang. Since the prosecutor may charge you with either a misdemeanor or a felony under Section 186.22(a), based on the unique circumstances of your case, Criminal Street Gang Activity is a “wobbler” crime in California.
The offense is actually a form of sentencing enhancement. Violation of CPC §186.22 carries a maximum penalty of up to three years in a state prison, an additional term that must be served immediately after serving the sentence for an original offense, and an additional fine of up to $10,000.
What Does California Penal Code §186.22(a) [Criminal Street Gang Activity] Prohibit?
In sum, to be guilty of Criminal Street Gang Activity under CPC §186.22(a), you must:
- Commit or attempt a crime, AND,
- Act for (or with) a gang; AND,
- Intend to participate in gang activity.
Defining “Criminal Street Gang Activity” Under California Penal Code §186.22(a)
To convict you under CPC §186.22(a), the prosecutor must prove the following beyond a reasonable doubt:
- COMMITTED OR ATTEMPTED: You committed or attempted to commit a felony crime; AND,
- ACTED FOR THE BENEFIT OF…: You acted for the benefit of, at the direction of, or in association with a criminal street gang; AND,
- INTENT: Your intent was to assist, further, or promote criminal conduct of gang members.
Note: The prosecution does not need to prove you're an active or current member of the alleged criminal street gang.
Example: Defendant Don owns Auto Shop. Don's Son, member of a notorious LA criminal street gang, is ordered by Gang Boss to enlist Don in the gang's criminal activities. Don grudgingly turns Auto Shop into a chop shop after much pleading from Son. But Detective hears about Don. She has him charged with a felony count of Operating A Chop Shop and a count under §186.22(a). Is Don innocent, on these facts?
Conclusion: Don knowingly participated in a felony crime. He knew he was acting at Boss' direction when he did so. These are elements of the crime. The only remaining question concerns his intent. Don didn't want to be a member of the gang. But prosecutors needn't prove that Don is a member for Don to be guilty. He willingly acted in association with the gang. This is enough for conviction. Don is guilty.
Defining Gangs and “Criminal Activity” Under Section 186.22(a)
There are more than two-dozen offenses listed in Section 186.22 which define whether a gang is “criminal.” The following crimes establish a “pattern of criminal activity” by the gang sufficient to permit a jury to conclude that you were working for, or with, a “criminal gang” when you committed a crime:
- Assault With A Deadly Weapon (CPC §245) occurs whenever anyone assaults another person with a deadly weapon, or a weapon other than a firearm, or when anyone assaults another person using force likely to produce great bodily injury.
- Robbery (CPC 211) involves use threats or force to take someone else's property against that person's will. You must've decided to commit a robbery before taking the property.
- Murder (CPC §187) is the unlawful killing of a human being or fetus with malice aforethought. Penal Code Section 187 applies to murders that are premeditated or specified in the statutes and to killings that occur during the commission of dangerous felonies.
- Manslaughter (CPC §192) is the unlawful killing of a human being without malice. It is of three kinds: Voluntary (killing upon a sudden quarrel or in the heat of passion); Involuntary (killing in the commission of an unlawful act not amounting to a felony, or killing in the commission of a lawful act conducted in an unlawful manner); and Vehicular Manslaughter.
- Possession for Sale of Controlled Substance (HSC §11351) involves possessing for sale any of a wide variety of drugs referred to in the statute, including Schedule I and II narcotics. Section 11351 also makes it illegal to purchase for sale any of the drugs in the statute.
- Sale, Transportation for Sale, etc., of Controlled Substance (HSC §11352) occurs whenever anyone transports, sells, gives away, or offers to do any of these, with a substance listed in the statute. You must transport the illegal substance for sales purposes to violate the law.
- Shooting At An Inhabited Dwelling (CPC 246) involves discharging a firearm at an inhabited dwelling, occupied building, occupied motor vehicle, occupied aircraft, inhabited house car or inhabited camper. The dwelling must be one which is being used, whether occupied or not at the time of the shooting.
- Discharging Or Permitting Discharge Of A Firearm From A Motor Vehicle (CPC §26100) occurs if you permit another person to discharge a firearm from your vehicle or if you discharge a firearm from your own motor vehicle.
- Arson (CPC §451) involves burning property willfully and maliciously or aiding someone in burning property. Even the slightest singeing is sufficient. However, burning your own property, or getting someone else to burn your property, isn't arson unless you intend on defrauding someone, you hurt someone, or unless you damage someone else's property.
- Witness Intimidation (CPC 136.1) is a crime when anyone knowingly and maliciously prevents or dissuades a witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. It applies to attempted intimidation, as well.
- Grand Theft (CPC §487) occurs when anyone steals property or services worth more than $950. You can also violate Section 487 by stealing an automobile, a firearm, or fish (if stolen from a commercial fishery or a research operation).
- Burglary (CPC 459) is the act of entering a structure with the intent of committing a felony. Entry does not have to be accomplished by force, through threat of violence, or through any act of destruction. Entry must occur with the intention of committing a felony or any crime that can be charged as a felony.
- Rape (CPC §261) in its most basic form involves using force, fear, threats or duress to have sex with someone who isn't your spouse. Rape always involves overcoming the free will of the victim, although it isn't required that the victim resist to communicate lack of consent.
- Money Laundering (CPC 186.10) is a crime when you conduct or attempt to conduct a transaction in order to facilitate criminal activity or if do the same knowing that the money you are using is the product of criminal activity. Money can be criminal under the statute whether it's directly or indirectly linked to crime.
- Kidnapping (CPC 207) makes it illegal to take someone, by means of force or fear, into any other California county, or any other state, or country. Taking someone to a place inside the same county is also illegal. In fact, simply detaining or arresting someone without having the right also qualifies as kidnapping.
- Mayhem (CPC 203) involves unlawfully and maliciously depriving a human being of a member of the body, or disabling, disfiguring, or rendering that member useless, or cutting or disabling a person's tongue, or putting out an eye, or slitting the nose, ear, or the lip.
- Aggravated Mayhem (CPC 205) is a crime when, under circumstances manifesting extreme indifference to the well-being of another, anyone intentionally causes permanent disability or disfigurement to another or deprives another of a limb, organ, or a member of his or her body. It isn't necessary to prove an intent to kill the victim to be guilty under this Section.
- Torture (CPC 206) involves inflicting great bodily injury on another person. The intent must be to cause the victim to suffer cruel or extreme pain for the purpose of revenge, extortion, persuasion, or any sadistic purpose.
- Extortion (CPC 518) in its basic form occurs when anyone forces another to part with property or makes another do something through unlawful threats or force. Extortion can also occur when a person using threats or force makes an official do something or when an official unlawfully makes another person do something while claiming official right to do so.
- Carjacking (CPC 215) involves illegally taking a motor vehicle from another person, or from that person's immediate presence, against his or her will. You must intend to deprive the person in possession of the vehicle of her or his possession and you must take the vehicle using force or fear.
- Sale, Delivery, Or Transfer Of A Firearm (CPC §27500) occurs when anyone sells or gives a firearm to any person prohibited by Section 29800 or Section 29900. The law also applies to anyone you have cause to believe is within any of the classes, including people listed in Section 8100 or Section 8103 of the Welfare and Institutions Code.
- Minor Possessing Deadly Weapons (CPC 29610) makes it illegal for minors to possess handguns or semiautomatic rifles. As of January 1, 2023, minors will be prohibited from possessing all firearms in the State of California.
- Criminal Threats (CPC 422) applies whenever a person threatens a crime that would result in death or great bodily injury, intending that the statement be taken as a threat. The threat must result in the target of the threat feeling sustained fear. The law can also be violated by threatening a member of a targeted person's family.
- "Joyriding" (California Vehicle Code [CVC] §10851) is a crime based on theft and unlawful taking or driving of a vehicle. It occurs if you took another person's vehicle without the owner's consent and intended to deprive the owner of the vehicle for any period of time. The law applies regardless of whether you intended on stealing or returning the vehicle.
- Prohibited Firearm Possession (CPC 29800) is an “umbrella” law making it illegal for persons convicted of various crimes to own, possess, receive, purchase, or have custody of, or control over, a firearm. Section 29800 applies to convicted felons, people convicted of certain specified misdemeanors, and anyone addicted to a narcotic drug.
- Carrying A Concealed Firearm (CPC §25400) occurs whenever anyone carries a weapon capable of being concealed, or carries a concealable firearm within any vehicle under that person's control or direction, or causes an occupant of his or her vehicle to carry a concealed firearm. Firearms carried openly in belt holsters aren't covered by the statute.
- Carrying A Loaded Firearm (CPC 25850) occurs when anyone carries a loaded firearm on his or her person or inside a vehicle on any public place or any public street in an incorporated city. The law also applies to public places and public streets in prohibited areas of unincorporated territories.
Penalties For Criminal Street Gang Activity Under CPC §186.22(a)
If you're convicted of felony Criminal Street Gang Activity, the penalty may be:
- A term of up to three (3) years in a state prison in addition to any sentence or fine for the underlying offense generating the enhancement; OR,
- A fine of up to $10,000 (ten-thousand dollars); OR,
- Both a fine and imprisonment.
If you're convicted of misdemeanor Criminal Street Gang Activity, the penalty may be:
- A term of up to one (1) year in a county jail in addition to any sentence or fine for the underlying offense generating the enhancement; OR,
- A fine of up to $1,000 (one-thousand dollars); OR,
- Both a fine and imprisonment.
As mentioned previously, the prosecutor may charge you with either a misdemeanor or a felony under Section 186.22(a), based on the unique circumstances of your case. This makes Criminal Street Gang Activity a “wobbler” crime in California.
The offense is actually a form of sentencing enhancement. Violation carries a maximum penalty of three (3) years in a state prison, an additional term that must be served immediately after serving the sentence for your original offense, and a fine of up to $10,000 (ten-thousand dollars), or both a fine and imprisonment. If it is prosecuted as a misdemeanor, it carries a maximum of one (1) additional year in a county jail and/or a fine of up to $1,000 (one-thousand dollars).
Defenses Against California Penal Code §186.22(a) – Criminal Street Gang Activity
Three common defenses against a charge of Criminal Street Gang Activity under CPC §186.22(a) are:
You Weren't An Active Gang Participant
Example: Defendant David is not in a gang. He steals a car. He later makes the acquaintance of Member of Criminal Biker Gang and sells Member the car. Member, a police informant, tells law enforcement of the deal. David is charged with felony Receiving Stolen Property. He's also charged under §186.22(a). He insists that he isn't guilty of the second crime even if he might be guilty of the first. Is he correct?
Conclusion: David stole a car before he knew Member. Thus, while he can be guilty under CPC §496, he couldn't have stolen the car at the direction of the gang, or to aid the gang. If even one element of a criminal charge can't be proved beyond a reasonable doubt, the defendant in a trial must be acquitted. Two elements are missing in these facts. David is thus correct. He was not an active gang participant.
You Committed (Or Attempted) No Crime
Example: Defendant Donna is a known member of a criminal street gang. Police, stopping her vehicle for a routine traffic offense, find an ounce of marijuana in her trunk. They arrest her. They charge her with Possession of Marijuana. They also attach a charge under CPC §186.22(a). Donna insists that she did nothing to justify these charges and must be acquitted. Is Donna correct or should she be convicted?
Conclusion: While Donna is a member of a criminal street gang, this is insufficient for guilt under the Section. To be guilty, she had to commit a crime in association with the gang. Possessing an ounce of marijuana is not illegal in California (without additional facts). If Donna committed no offense, she can't be guilty of violating §186.22(a). She is correct. She neither committed nor attempted a crime.
You Weren't Acting To Benefit A Gang
Example: Defendant Deane is not a member of Criminal Street Gang. He's preparing to create his own gang instead. He begins selling narcotics that he acquires with his own funds. He keeps the profits. Police soon learn of his activities. Deane is charged under CPC §186.22(a) based on the narcotics sales. Deane insists that he isn't guilty of the charge, under these circumstances. Is Deane correct?
Conclusion: Deane sold narcotics. This is a crime. It's also an element of the offense under Section 186.22(a). But Deane didn't sell the drugs in association with a criminal street gang; he's working to create a gang of his own. He was not, therefore, working for (or working with) a gang when he sold the narcotics. Deane is thus correct. He wasn't acting to benefit a gang.
Note: The crimes below are described generally as “related” because they're frequently charged with CPC §186.22(a) and/or have common elements the prosecutor must prove beyond a reasonable doubt.
The California Penal Code includes multiple offenses related to Criminal Street Gang Activity: Hate Crime Penalty Enhancement (CPC §422.75), Great Bodily Injury Enhancement (CPC §12022.7), and “The 10-20-Life Law” Enhancement (CPC §12022.53).
Hate Crime Enhancement
California law creates a Hate Crime Enhancement (CPC §422.75) that applies to anyone who commits or attempts a felony that is also proven to be a hate crime. It's related to Criminal Street Gang Activity because the hate crime enhancement can apply also to felonies that're eligible for enhancement under Section 186.22(a).
If you're sentenced under the Hate Crime Enhancement, the penalty may be:
- A term of four (4) years in a state prison in addition to the underlying felony sentence and fine.
California Jury Instructions – Hate Crime Enhancement
To convict you under CPC §422.75, the prosecution must prove the following beyond a reasonable doubt:
You were biased against a person based on the person's actual or perceived disability, gender, nationality, race or ethnicity, religion, sexual orientation or that person's association with another person or group with these characteristics. Your bias also caused you to commit an alleged felony.
Example: Defendant Denni has a personal disdain for Disabled Neighbor. She hates Disabled Neighbor's personality, her attitude, her taste in dress and even the food she cooks. Perhaps the only thing Denni doesn't hate Disabled Neighbor for is her disability. But after she commits a felony Assault with a Deadly Weapon on Disabled Neighbor, police call it a hate crime and charge her under §422.75. Is Denni guilty?
Conclusion: Denni committed a felony offense against Disabled Neighbor. These are elements of the crime. But the facts make it clear that Denni isn't biased against Disabled Neighbor because of the neighbor's disability. She has a long list of reasons, none of which pertains to difference in ability. Denni is thus not guilty under Section 422.75, even though she may be prosecuted under CPC §245(a)(1).
Great Bodily Injury Enhancement
The Great Bodily Injury Enhancement (CPC §12022.7) involves personally inflicting significant or substantial bodily injury on any person other than your accomplice while committing a felony or attempting a felony. The law is related to Criminal Street Gang Activity because the Great Bodily Injury Enhancement can apply also to felonies that're eligible for enhancement under Section 186.22(a).
If you're sentenced under the Great Bodily Injury Enhancement, the penalty may be:
- A term of six (6) years in a state prison in addition to the underlying felony sentence and fine.
More information can be found in the Battery Causing Great Bodily Injury section of the Kann California Law Group's website. Feel free to contact the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call goes directly to a lawyer. We guarantee that.
California Jury Instructions – Great Bodily Injury Enhancement
To convict you under CPC §12022.7, the prosecution must prove the following beyond a reasonable doubt:
You personally inflicted great bodily injury on someone while you were committing or attempting a felony crime of which you've been found guilty. The injured person was not an accomplice to the crime. Finally, you inflicted significant or substantial injury on the injured person.
Example: Defendant Dale admits he used a firearm to rob Victim Vinton's store. He admits that he pistol-whipped Vinton during the robbery. He has been found guilty of the robbery. But Dale says he shouldn't be subject to sentence enhancement under CPC §12022.7 since Vinton's jaw was “a little bruised” when Dale struck him. Is Dale correct?
Conclusion: Dale has been found guilty of a felony offense (an armed Robbery). He injured Vinton while
robbing Vinton's store. Vinton wasn't his accomplice. These are elements of the crime. But a bruised jaw wouldn't qualify as “significant” or “substantial” injury, which is called for in Section 12022.7. Since it would be reasonable for a jury to conclude that Vinton didn't suffer “great” bodily injury, Dale is correct.
“The 10-20-Life Law” Enhancement
“The 10-20-Life Law” Enhancement (CPC §12022.53) creates a sentence enhancement whenever anyone uses a gun to kill or seriously injure another person while also committing one of the felonies listed in the statute. The statute is related to Criminal Street Gang Activity because the ““The 10-20-Life Law” Enhancement can apply also to felonies that're eligible for enhancement under Section 186.22(a).
If you're sentenced under “The 10-20 Life Law” Enhancement, the penalty may be:
- A term of life in a state prison in addition to the underlying felony sentence and fine.
More information can be found in the California Violent Crime Defense Lawyers section of the Kann California Law Group's website. Feel free to contact the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. Guaranteed.
California Jury Instructions – “The 10-20-Life Law” Enhancement
To convict you under CPC §12022.53, the prosecution must prove the following beyond a reasonable doubt:
You personally used or discharged a firearm during the commission or attempted commission of one or more of the crimes listed in Section 12022.53. You intended to discharge the firearm. Finally, your act caused great bodily injury to, or the death of, a person who was not an accomplice to the crime.
Example: Defendant Denna gets into a quarrel with Victim Vera. At one point, Denna draws a weapon and brandishes it. She waves the gun in Vera's face for a moment. The aging pistol fires at the same instant. Vera is killed. Denna swears that she only intended to brandish the firearm but now she is facing an enhancement under CPC §12022.53 nonetheless. Should Denna be acquitted or convicted?
Conclusion: Denna discharged a firearm and killed Vera in so doing. These are elements of the charge. But Denna didn't intend on firing her weapon; the “aging pistol” accidentally fired when brandished. Furthermore, the crime of Brandishing A Firearm is not a felony under these circumstances. Since elements of the offense can't be proved beyond a reasonable doubt, Denna should be acquitted.
What Can I Do If I'm Charged With Criminal Street Gang Activity?
The State of California treats Criminal Street Gang Activity as a serious offense. If you're charged with Criminal Street Gang Activity, it's essential that you retain a skilled, dedicated criminal defense attorney as soon as possible. Your rights, freedom, and livelihood are at stake.
Remember, a professional criminal defense attorney may be able to:
- Negotiate a lesser charge in a plea bargain;
- Reduce your sentence;
- Or even get charges dismissed completely.
The attorneys at the Kann California Law Group have an excellent understanding of the local courts and an extensive knowledge of California's criminal justice system. We can represent you in Ventura, Santa Clarita, Los Angeles, Encino, Pasadena and many other Southern California cities.
If you or someone you know has been arrested for, or charged with, Criminal Street Gang Activity, our attorneys will analyze the facts of your case and plan a strategy that will help you obtain the best possible outcome.
Contact the Kann California Law Group today to schedule your free and confidential consultation.
 See “Wobbler Law and Legal Definition” at USLegal.com.
 “A criminal street gang is any ongoing organization, association, or group of three or more persons, whether formal or informal: 1. That has a common name or common identifying sign or symbol; 2. That has, as one or more of its primary activities, the commission of [a crime listed in Pen. Code §186.22(e)(1)-(25), (31)-(33)]; AND, 3. Whose members, whether acting alone or together, engage in or have engaged in a pattern of criminal gang activity.” See California Criminal Jury Instructions 1401 (CALCRIM) (2020).
 See CPC §29900.
 See WIC §8103.
 See CPC §186.22 (a).
 See CPC §672.
 See Endnote 10.
 See CPC §19.
 See Endnote 1.
 See Endnote 10.
 See Endnote 11.
 See Endnote 10.
 See Endnote 13.
 See CPC §496 (a).
 See “Possession of Marijuana” on the Kann California Law Group website.
 If the marijuana were in her car, it would be a violation of Business and Professions Code [BPC] §25620 (a), the Open Container law. But Section 25620 is only an infraction. Therefore, even if Donna committed this crime, an Open Container violation wouldn't rise to the level of offense intended under CPC §186.22 (a). She is still innocent.
 See CPC §422.55.
 See CPC §422.75 (b).
 See CPC §245 (a) (1).
 See “Accomplice Law and Legal Definition” at USLegal.com.
 See CPC §12022.7 (d).
 See CPC §12022.7 (f).
 See CPC §12022.53 (d).
 See CPC §417 (a) (1).