Cal Pen Code § 186.22 (2004)
§ 186.22. Street gang
(a) Any person who actively participates in any criminal street
gang with knowledge that its members engage in or have engaged in a pattern of
criminal gang activity, and who willfully promotes, furthers, or assists in any
felonious criminal conduct by members of that gang, shall be punished by
imprisonment in a county jail for a period not to exceed one year, or by
imprisonment in the state prison for 16 months, or two or three years.
(b)(1) Except as provided in paragraphs (4) and (5), any
person who is convicted of a felony 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, shall, upon conviction of that felony, in addition and consecutive to
the punishment prescribed for the felony or attempted felony of which he or she
has been convicted, be punished as follows:
(A) Except as provided in subparagraphs (B) and (C), the
person shall be punished by an additional term of two, three, or four years at
the court's discretion.
(B) If the felony is a serious felony, as defined in
subdivision (c) of Section 1192.7, the person shall be punished by an
additional term of five years.
(C) If the felony is a violent felony, as defined in
subdivision (c) of Section 667.5, the person shall be punished by an additional
term of 10 years.
(2) If the underlying felony described in paragraph (1) is
committed on the grounds of, or within 1,000 feet of, a public or private
elementary, vocational, junior high, or high school, during hours in which the
facility is open for classes or school-related programs or when minors are
using the facility that fact shall be a circumstance in aggravation of the
crime in imposing a term under paragraph (1).
(3) The court shall order the imposition of the middle term
of the sentence enhancement, unless there are circumstances in aggravation or
mitigation. The court shall state the reasons for its choice of sentencing
enhancements on the record at the time of the sentencing.
(4) Any person who is convicted of a felony enumerated in
this paragraph 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, shall, upon
conviction of that felony, be sentenced to an indeterminate term of life
imprisonment with a minimum term of the indeterminate sentence calculated as
the greater of:
(A) The term determined by the court pursuant to Section 1170
for the underlying conviction, including any enhancement applicable under
Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period
prescribed by Section 3046, if the felony is any of the offenses enumerated in
subparagraphs (B) or (C) of this paragraph.
(B) Imprisonment in the state prison for 15 years, if the
felony is a home invasion robbery, in violation of subparagraph (A) of
paragraph (1) of subdivision (a) of Section 213; carjacking, as defined in
Section 215; a felony violation of Section 246; or a violation of Section
12022.55.
(C) Imprisonment in the state prison for seven years, if the
felony is extortion, as defined in Section 519; or threats to victims and
witnesses, as defined in Section 136.1.
(5) Except as provided in paragraph (4), any person who
violates this subdivision in the commission of a felony punishable by
imprisonment in the state prison for life, shall not be paroled until a minimum
of 15 calendar years have been served.
(c) If the court grants probation or suspends the execution
of sentence imposed upon the defendant for a violation of subdivision (a), or
in cases involving a true finding of the enhancement enumerated in subdivision
(b), the court shall require that the defendant serve a minimum of 180 days in
a county jail as a condition thereof.
(d) Any person who is convicted of a public offense
punishable as a felony or a misdemeanor, which is 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, shall be punished by imprisonment in the county jail not to exceed one
year, or by imprisonment in the state prison for one, two, or three years, provided
that any person sentenced to imprisonment in the county jail shall be
imprisoned for a period not to exceed one year, but not less than 180 days, and
shall not be eligible for release upon completion of sentence, parole, or any
other basis, until he or she has served 180 days. If the court grants probation
or suspends the execution of sentence imposed upon the defendant, it shall
require as a condition thereof that the defendant serve 180 days in a county
jail.
(e) As used in this chapter, "pattern of criminal gang
activity" means the commission of, attempted commission of, conspiracy to
commit, or solicitation of, sustained juvenile petition for, or conviction of
two or more of the following offenses, provided at least one of these offenses
occurred after the effective date of this chapter and the last of those
offenses occurred within three years after a prior offense, and the offenses
were committed on separate occasions, or by two or more persons:
(1) Assault with a deadly weapon or by means of force likely
to produce great bodily injury, as defined in Section 245.
(2) Robbery, as defined in Chapter 4 (commencing with Section
211) of Title 8 of Part 1.
(3) Unlawful homicide or manslaughter, as defined in Chapter
1 (commencing with Section 187) of Title 8 of Part 1.
(4) The sale, possession for sale, transportation,
manufacture, offer for sale, or offer to manufacture controlled substances as
defined in Sections 11054, 11055, 11056, 11057, and
11058 of the Health and Safety Code.
(5) Shooting at an inhabited dwelling or occupied motor
vehicle, as defined in Section 246.
(6) Discharging or permitting the discharge of a firearm from
a motor vehicle, as defined in subdivisions (a) and (b) of Section 12034.
(7) Arson, as defined in Chapter 1 (commencing with Section
450) of Title 13.
(8) The intimidation of witnesses and victims, as defined in
Section 136.1.
(9) Grand theft, as defined in subdivision (a) or (c) of
Section 487.
(10) Grand theft of any firearm, vehicle, trailer, or vessel.
(11) Burglary, as defined in Section 459.
(12) Rape, as defined in Section 261.
(13) Looting, as defined in Section 463.
(14) Money laundering, as defined in Section 186.10.
(15) Kidnapping, as defined in Section 207.
(16) Mayhem, as defined in Section 203.
(17) Aggravated mayhem, as defined in Section 205.
(18) Torture, as defined in Section 206.
(19) Felony extortion, as defined in Sections 518 and 520.
(20) Felony vandalism, as defined in paragraph (1) of
subdivision (b) of Section 594.
(21) Carjacking, as defined in Section 215.
(22) The sale, delivery, or transfer of a firearm, as defined
in Section 12072.
(23) Possession of a pistol, revolver, or other firearm
capable of being concealed upon the person in violation of paragraph (1) of
subdivision (a) of Section 12101.
(24) Threats to commit crimes resulting in death or great
bodily injury, as defined in Section 422.
(25) Theft and unlawful taking or driving of a vehicle, as
defined in Section 10851 of the Vehicle Code.
(f) As used in this chapter, "criminal street gang"
means any ongoing organization, association, or group of three or more persons,
whether formal or informal, having as one of its primary activities the
commission of one or more of the criminal acts enumerated in paragraphs (1) to
(25), inclusive, of subdivision (e), having a common name or common identifying
sign or symbol, and whose members individually or collectively engage in or
have engaged in a pattern of criminal gang activity.
(g) Notwithstanding any other law, the court may strike the
additional punishment for the enhancements provided in this section or refuse
to impose the minimum jail sentence for misdemeanors in an unusual case where
the interests of justice would best be served, if the court specifies on the
record and enters into the minutes the circumstances indicating that the
interests of justice would best be served by that disposition.
(h) Notwithstanding any other provision of law, for each
person committed to the Youth Authority for a conviction pursuant to
subdivision (a) or (b) of this section, the offense shall be deemed one for
which the state shall pay the rate of 100 percent of the per capita
institutional cost of the Department of Youth Authority, pursuant to Section 912.5 of the Welfare and Institutions Code.
(i) In order to secure a conviction, or sustain a juvenile
petition, pursuant to subdivision (a), it is not necessary for the prosecution
to prove that the person devotes all, or a substantial part of his or her time
or efforts to the criminal street gang, nor is it necessary to prove that the
person is a member of the criminal street gang. Active participation in the
criminal street gang is all that is required.