Orange County Gang Enhancement Defense
To warrant a gang enhancement, California law requires the prosecutor to prove two things. First, the prosecutor must demonstrate that the defendant committed a felony "for the benefit of, at the direction of, or in association with a criminal street gang." California Penal Code Section 186.22(b)(1). Second, the prosecutor must show that the defendant committed the crime
"with the specific intent to promote, further, or assist in any criminal conduct by gang members." The Criminal Defense Attorney's defense of a gang enhancement must recognize the importance of keeping these two requirements separate, and must also emphasize that the second step is not satisfied by evidence of mere membership in a criminal street gang alone.
Proof of Gang Affiliation
It may or may not be in dispute that the defendant is the member of a criminal street gang. Testimony may be taken related the manner in which members are inducted into gangs, the conduct required of gang members, and their duties of loyalty to the gang. The gang expert may also describe the symbols of gang membership, including tattoos and "monikers" (i.e., names given to gang members by other members). However, nicknames alone are insufficient to prove membership in a criminal street gang.
Proof of specific intent to facilitate other criminal conduct by the gang
Although a police expert may testify that the defendant was in fact a gang member, there is often insufficient evidence to warrant an enhanced sentence under § 186.22(b)(1) because there was no evidence, aside from the gang expert's generic testimony, that would support even an inference
that defendant committed the felony with the specific intent to facilitate other criminal conduct by the gang. Aside from evidence of gang membership, the record is usually silent as to "what criminal activity of the gang was . . . intended to be furthered by the robbery." Without this evidentiary link, it is unreasonable to conclude that the defendant committed an offense with the specific intent to facilitate other gang crimes. There is usually a total failure of proof of the requisite specific intent.
Because of the lack of sufficient evidence to prove specific intent, the Criminal Defense Lawyer may be able to have the gang enhancement stricken from the case.