Participation in a criminal street gang: enhanced sentence.

Existing law makes it a crime, punishable as either a misdemeanor or a felony, to actively participate in a criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity and to actively promote, further, or assist in felonious criminal conduct by members of that gang. Existing law provides for an enhanced sentence, as specified, for a person who is convicted of a crime committed for the benefit of, at the direction of, or in association with, a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by the gang members. Existing law defines "pattern of criminal gang activity" for this purpose as the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of 2 or more of a list of specified offenses, provided at least one of these offenses occurred after the effective date of these provisions and the last of those offenses occurred within 3 years after a prior offense, and the offenses were committed on separate occasions, or by 2 or more persons. Under existing law, the specified offenses to form a pattern of criminal gang activity include, among others, burglary, looting, felony vandalism, and various personal identity fraud crimes. This bill would also require that the crimes committed to form a pattern of criminal gang activity have commonly benefited a criminal street gang and that the common benefit from the offenses be more than reputational, as specified. The bill would remove looting, felony vandalism, and specified personal identity fraud violations from the crimes that define a pattern of criminal gang activity. The bill would prohibit the use of the currently charged crime to prove the pattern of criminal gang activity. This bill would require, if requested by the defense in a case where a sentencing enhancement for participation in a criminal street gang is charged, that the defendant's guilt of the underlying offense first be proved and that a further proceeding on the sentencing enhancement occur after a finding of guilt. The bill would require that a charge for active participation in a criminal street gang be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime. For purposes of the enhancement, existing law defines "criminal street gang" as an ongoing organization, association, or group of 3 or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the enumerated criminal acts, 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. This bill, instead, would define "criminal street gang" as an ongoing, organized organization or group of 3 or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the enumerated criminal acts, having a common name or common identifying sign or symbol, and whose members collectively engage in, or have engaged in, a pattern of criminal gang activity. Existing law, until January 1, 2022, requires the court, when applying the enhancement, to select the sentence that best serves the interests of justice. Existing law, on and after January 1, 2022, requires the court to instead order the imposition of the middle term of the sentence enhancement, unless there are circumstances in aggravation or mitigation. This bill would extend to January 1, 2023, the requirement that the court select the sentence that best serves the interest of justice.