One of the most difficult cases to defend in a criminal court is a charge that contains an allegation that the accused is a gang member. California enacted the "California Street Terrorism Enforcement and Prevention Act" in 1988.
California's gang statute defines a criminal street gang as "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 [some 28 specified felonies listed in 186.22(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."
Penal Code section 186.22(a) makes it an alternate misdemeanor or felony to participate "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..." This charge is rarely brought by prosecutors.
Penal Code section 186.22(b) is the gang enhancement section that is frequently used by prosecutors. The charge can add time to the penalty for felonies "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..." Given this language, even persons who are not gang members can be punished under this law for committing a crime in conjunction with or to benefit other gang members. The gang allegation can add 5 or 10 years to some felonies or convert other crimes that wouldn't normally carry life into life cases.
As a practical matter, however, it is not usually the added sentences that create such a great difficulty for persons charged with a gang enhancement. The cases are so difficult because the gang enhancement allows the government to call a "gang expert" to testify about the how gangs are the "armies of darkness." The "gang expert" is usually nothing more than police officer that has worked a gang beat. The prosecutor will use the term gang as a theme that runs throughout the entire case to explain why witnesses have changed their story, are terrified of the defendant and, in short, why they should convict the accused gang member.
The following is actual testimony from a Long Beach police officer at a gang murder trial in Long Beach. It becomes obvious after reading just a few answers that the officer is simply trying to smear the man on trial and prejudice the jury against him based on no actual evidence.
Q: All gang members that you know in fact commit robberies and home invasion robberies and arson and murder?
A: "The majority, yes." [No statistics or actual evidence supports this claim.]
Q: What is a gang?
A: "A gang is one or three people, approximately three people, who congregate together, or who are represented by gang attire or symbols that are there to terrify the citizens...The main goal is the more crimes they commit and worse crimes that other people know of them have committed, the hierarchy in the gang area that they are looked upon." [Yes, that's really what he said.]
Q: Are the men on trial gang members?
A: "My opinion would be that they [the men on trial] are hardcore gang members...[they] are individuals who I explained earlier about putting in work and doing crimes for their gang itself."
Q: What did the defendant have an newspaper article about a murder in his home?
A: "Whoever had this article kept it as a trophy, and most likely did kill him..." [A newspaper article about an unrelated murder was found in the defendant's room. There was no actual evidence that the accused had anything to do with the murder in newspaper article that was found in his room.]
Q: Why do you think the defendant is a hardcore gang member?
A: "I have information that links him [the accused] to a double homicide." [There was no actual evidence that the accused was involved with any other double murder.]
The attorney who represented this defendant failed to object to this improper testimony. He failed to make a pre-trial motion to exclude and limit the gang testimony. And, most importantly, he did not know how to cross-examine the "expert" to show that he was unqualified, and was saying things for which there was no factual support.
This gang testimony lead, in no small part, to the wrongful conviction of the defendant in that case, even though he was innocent. Successful attacks can be made against gang allegations. Defense counsel must demand that the government turn over all of their "gang evidence" about not only the accused but all the involved parties. The credentials of the "gang expert" must be obtained along with his prior testimony about the same gang. Gang experts do say the craziest things.
At the preliminary hearing the gang expert's lack of credentials can be exposed as well as his basis of knowledge. The testimony from the preliminary hearing can be used at trial to do further damage to the government's case. Finally at trial, legal motions can be made to limit the gang "expert's" testimony to prevent the sort of testimony above. A well prepared and executed cross-examination of the gang expert can greatly damage the prosecutor's case.
In 2014, a new law has provided persons accused of gang activity a certain amount of protection from improperly being placed in a law enforcement gang database. Now, under Penal Code section 186.34, juveniles and adults accused of gang activity as a member, associate or affiliate are entitled to notice before their names are placed in a gang data base. After notice, those accused of gang participation have the right to present written documentation contesting the designation. Law enforcement must notify persons of the placement on a data base within 60 days of the agency’s final decision.