Gang Enhancement Math; 1 + 1 + 1 = Life in Prison
Gang Affiliation – Criminal Defense Attorney
Gangs are bad, let’s all agree on that for a starting point (take that, all you members of law enforcement reading this right now who thought we’d never agree on anything). There’s no good reason or moral justification to join a street gang. Everyone knows gang members commit acts of violence, break the law, and are often a source of fear to the law-abiding members of their usually poor communities. On a related note, gang members tend to be pretty bad crooks. What I mean by that is, unlike sophisticated criminals, gang members tend to broadcast their criminal exploits which is why they are always in legal trouble (who would think that bragging about crime on Myspace would be a bad idea). Kids, if you are reading this, don’t join a gang – the juice isn’t worth the squeeze.
Of course, if you ask some of the youth in the barrios or ‘hoods, particularly those without stable upbringings or family structure, membership in their local gang provides them protection from a mean and dangerous world outside their front door, and a source of love and acceptance sadly absent at home. I’m no sociologist, but it seems pretty simple to me; so long as poor communities exist, where crime rates are rampant, gangs will form for protection from the other dangers. Historically, in America, ethnic gangs originally formed for protection from other ethnic groups.
No doubt that the existence of gangs only serve to exacerbate the crime and danger already in their communities, but even without the gangs it’s still a dangerous world out there.
Today’s blog assumes that a group of three “gang members” commits a crime vs. a group of say, three lawyers who commit the same offense. I won’t get into the process of how an individual (or gang) becomes documented, we’ll save that for another time, but the hypotheticals which follow assume that the group of “gang member” defendants are bona-fide ride-or-die gangbangers (and as not to over-complicate the point of this blog, also meet the legal definition of documented gang member, and have demonstrated a previous “pattern of criminal activity”).
Hypothetical #1 – I (Lawyer) get 7 years max, you (Gangbanger) get 15 to Life
A group of friends are having a party, attended by the three lawyers and three gang members. Everyone is drinking and having a good time. The carne asada is fabulous. Next thing you know, the host of the party comes running downstairs and says his daughter was raped by some guys who ran away into a house next door (anyone seen/read “A Time to Kill”?). Enraged, one of the three lawyers grab a gun, then they all run to the house next door together, gun in hand. Next, the first lawyer hands the gun to his second lawyer friend, while the third lawyer encourages the second lawyer to shoot the weapon at the house next door. The second lawyer fires the gun into the living room window. No one is wounded or killed as a result of the gunshot.
California Penal Code §246 (Discharge of a Firearm at an Occupied Building) states:
Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle, occupied aircraft, inhabited
housecar, as defined in Section 362 of the Vehicle Code, or inhabited camper, as defined in Section 243 of the Vehicle Code, is guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison for
three, five, or seven years, or by imprisonment in the county jail for a term of not less than six months and not exceeding one year.
Under the aiding and abetting theory of criminal liability, all three lawyers are equally responsible for the crime of Penal Code §246. As a non-gang members though, the three attorneys who committed this crime are exposed to no further punishment than the statutory maximum punishment for a single violation of Penal Code §246 – 7 years.
Now, assume for a moment, that the lawyers were busy watching football when the rape was reported, and instead of the lawyers, it was the three gangbangers who grabbed the gun and shot into the house. Because the gangbangers are eligible to be punished under
Penal Code §186.22(b)(4):
(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
the 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 subparagraph (B) or (C) of this paragraph.
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.
With all other things being equal, the gangbangers are looking at 15 to Life, while the lawyers are looking at 7 years max for the same offense. In all likelihood, a judge wouldn’t give the lawyers an upper-term sentence anyway, so they get to go home after four years while the gangbangers never go home. Theoretically, the gangbangers would be eligible for parole after fifteen years, but their chances for parole are slimmer than Lindsay Lohan. Still want to join that gang, little Johnny?
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