Amended IN Assembly March 24, 2021 CALIFORNIA LEGISLATURE 20212022 REGULAR SESSION Assembly Bill No. 333Introduced by Assembly Member KamlagerJanuary 27, 2021 An act to amend Section 186.22 of, and to add Section 1109 to, the Penal Code, relating to criminal gangs. LEGISLATIVE COUNSEL'S DIGESTAB 333, as amended, Kamlager. 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 two or more of a list of specified 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. 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. Existing law also defines criminal street gang for these purposes.This bill would also require that the crimes committed to form a pattern of criminal gang activity have commonly benefited at least one specified member of the gang other than the person who committed the offenses and that the common benefit from the offense be more than reputational. The bill would remove burglary, 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. The bill would require that an organization, association, or group of three or more persons have an established hierarchy to meet the definition of a criminal street gang. The bill would require that the prosecution prove that the defendant knows the person or people responsible for committing the offenses used to establish the pattern of criminal gang activity in order to prove the sentencing enhancement.In order to prove the sentencing enhancement, this bill would require the prosecution to prove that the defendant knows the person or people who committed the offenses used to establish the pattern of criminal gang activity, that the person or people who committed the offenses used to establish the pattern of criminal gang activity were members of the criminal street gang at the time those offenses were committed, that the crimes used to establish the pattern of criminal gang activity were committed for the benefit of, at the direction of, or in association with the criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by members of the criminal street gang, and that the crimes used to establish the pattern of criminal gang activity were committed within 3 years of the date the current offense is alleged to have been committed.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 defendants 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 organization, association, or group of 3 or more persons, whether formal or informal, with an established hierarchy, 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 violent criminal gang activity.Digest Key Vote: MAJORITY Appropriation: NO Fiscal Committee: NO Local Program: NO Bill TextThe people of the State of California do enact as follows:SECTION 1. Section 186.22 of the Penal Code, as amended by Section 179 of Chapter 561 of the Statutes of 2017, is amended to read:186.22. (a) A person who actively participates in a 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 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), a person who is convicted of a felony 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 gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which the person 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 courts 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) A person who is convicted of a felony enumerated in this paragraph 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 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 subparagraph (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), a 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) A person who is convicted of a public offense, punishable as a felony or a misdemeanor, that is 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 gang members, shall be punished by imprisonment in a county jail not to exceed one year, or by imprisonment in a state prison for one, two, or three years, provided that a 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 the person 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) (1) 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, the offenses were committed on separate occasions or by two or more persons, the offenses commonly benefited at least one specifically identified member of the gang other than the person who committed the offenses, and the common benefit from the offenses is more than reputational:(A) Assault with a deadly weapon or by means of force likely to produce great bodily injury, as defined in Section 245.(B) Robbery, as defined in Chapter 4 (commencing with Section 211) of Title 8.(C) Unlawful homicide or manslaughter, as defined in Chapter 1 (commencing with Section 187) of Title 8.(D) The sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture a controlled substance as defined in Section 11007 of the Health and Safety Code.(E) Shooting at an inhabited dwelling or occupied motor vehicle, as defined in Section 246.(F) Discharging or permitting the discharge of a firearm from a motor vehicle, as defined in subdivisions (a) and (b) of Section 12034 until January 1, 2012, and, on or after that date, subdivisions (a) and (b) of Section 26100.(G) Arson, as defined in Chapter 1 (commencing with Section 450) of Title 13.(H) The intimidation of witnesses and victims, as defined in Section 136.1.(I) Grand theft, as defined in subdivision (a) or (c) of Section 487.(J) Grand theft of any firearm, vehicle, trailer, or vessel. (K) Rape, as defined in Section 261.(L) Money laundering, as defined in Section 186.10.(M) Kidnapping, as defined in Section 207.(N) Mayhem, as defined in Section 203.(O) Aggravated mayhem, as defined in Section 205.(P) Torture, as defined in Section 206.(Q) Felony extortion, as defined in Sections 518 and 520.(R) Carjacking, as defined in Section 215.(S) The sale, delivery, or transfer of a firearm, as defined in Section 12072 until January 1, 2012, and, on or after that date, Article 1 (commencing with Section 27500) of Chapter 4 of Division 6 of Title 4 of Part 6.(T) 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 until January 1, 2012, and, on or after that date, Section 29610.(U) Threats to commit crimes resulting in death or great bodily injury, as defined in Section 422.(V) Theft and unlawful taking or driving of a vehicle, as defined in Section 10851 of the Vehicle Code. (W) Prohibited possession of a firearm in violation of Section 12021 until January 1, 2012, and, on or after that date, Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.(X) Carrying a concealed firearm in violation of Section 12025 until January 1, 2012, and, on or after that date, Section 25400.(Y) Carrying a loaded firearm in violation of Section 12031 until January 1, 2012, and, on or after that date, Section 25850.(2) The currently charged offense shall not be used to establish the pattern of criminal gang activity.(f) As used in this chapter, criminal street gang means an ongoing organization, association, or group of three or more persons, whether formal or informal, with an established hierarchy, having as one of its primary activities the commission of one or more of the criminal acts enumerated in 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 violent 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 law, for each person committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities 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 Corrections and Rehabilitation, Division of Juvenile Facilities, pursuant to former 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 their 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.(j) In order to prove the sentencing enhancement pursuant to subdivision (b), the prosecution shall prove that all of the following:(1) That the person defendant knows the person or people responsible for committing the offenses used to establish the pattern of criminal gang activity.(2) The person or people who committed the offenses used to establish the pattern of criminal gang activity were members of the criminal street gang at the time those offenses were committed.(3) The crimes used to establish the pattern of criminal gang activity were committed for the benefit of, at the direction of, or in association with, the criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by members of the criminal street gang at issue.(4) The crimes used to establish the pattern of criminal gang activity were committed within 3 years of the date that the current offense was alleged to have been committed.SEC. 2. Section 1109 is added to the Penal Code, to read:1109. (a) If requested by the defense, a case in which a gang enhancement is charged under subdivision (b) or (d) of Section 186.22 shall be tried in separate phases as follows:(1) The question of the defendants guilt of the underlying offense shall be first determined.(2) If the defendant is found guilty of the underlying offense and there is an allegation of an enhancement under subdivision (b) or (d) of Section 186.22, there shall be further proceedings to the trier of fact on the question of the truth of the enhancement. Allegations that the underlying offense was committed for the benefit of, at the direction of, or in association with, a criminal street gang and that the underlying offense was committed with the specific intent to promote, further, or assist in criminal conduct by gang members shall be proved by direct or circumstantial evidence.(b) If a defendant is charged with a violation of subdivision (a) of Section 186.22, this count shall be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime. This charge may be tried in the same proceeding with an allegation of an enhancement under subdivision (b) or (d) of Section 186.22.
Amended IN Assembly March 24, 2021 CALIFORNIA LEGISLATURE 20212022 REGULAR SESSION Assembly Bill No. 333Introduced by Assembly Member KamlagerJanuary 27, 2021 An act to amend Section 186.22 of, and to add Section 1109 to, the Penal Code, relating to criminal gangs. LEGISLATIVE COUNSEL'S DIGESTAB 333, as amended, Kamlager. 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 two or more of a list of specified 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. 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. Existing law also defines criminal street gang for these purposes.This bill would also require that the crimes committed to form a pattern of criminal gang activity have commonly benefited at least one specified member of the gang other than the person who committed the offenses and that the common benefit from the offense be more than reputational. The bill would remove burglary, 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. The bill would require that an organization, association, or group of three or more persons have an established hierarchy to meet the definition of a criminal street gang. The bill would require that the prosecution prove that the defendant knows the person or people responsible for committing the offenses used to establish the pattern of criminal gang activity in order to prove the sentencing enhancement.In order to prove the sentencing enhancement, this bill would require the prosecution to prove that the defendant knows the person or people who committed the offenses used to establish the pattern of criminal gang activity, that the person or people who committed the offenses used to establish the pattern of criminal gang activity were members of the criminal street gang at the time those offenses were committed, that the crimes used to establish the pattern of criminal gang activity were committed for the benefit of, at the direction of, or in association with the criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by members of the criminal street gang, and that the crimes used to establish the pattern of criminal gang activity were committed within 3 years of the date the current offense is alleged to have been committed.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 defendants 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 organization, association, or group of 3 or more persons, whether formal or informal, with an established hierarchy, 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 violent criminal gang activity.Digest Key Vote: MAJORITY Appropriation: NO Fiscal Committee: NO Local Program: NO
Amended IN Assembly March 24, 2021
Amended IN Assembly March 24, 2021
CALIFORNIA LEGISLATURE 20212022 REGULAR SESSION
Assembly Bill
No. 333
Introduced by Assembly Member KamlagerJanuary 27, 2021
Introduced by Assembly Member Kamlager
January 27, 2021
An act to amend Section 186.22 of, and to add Section 1109 to, the Penal Code, relating to criminal gangs.
LEGISLATIVE COUNSEL'S DIGEST
## LEGISLATIVE COUNSEL'S DIGEST
AB 333, as amended, Kamlager. 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 two or more of a list of specified 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. 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. Existing law also defines criminal street gang for these purposes.This bill would also require that the crimes committed to form a pattern of criminal gang activity have commonly benefited at least one specified member of the gang other than the person who committed the offenses and that the common benefit from the offense be more than reputational. The bill would remove burglary, 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. The bill would require that an organization, association, or group of three or more persons have an established hierarchy to meet the definition of a criminal street gang. The bill would require that the prosecution prove that the defendant knows the person or people responsible for committing the offenses used to establish the pattern of criminal gang activity in order to prove the sentencing enhancement.In order to prove the sentencing enhancement, this bill would require the prosecution to prove that the defendant knows the person or people who committed the offenses used to establish the pattern of criminal gang activity, that the person or people who committed the offenses used to establish the pattern of criminal gang activity were members of the criminal street gang at the time those offenses were committed, that the crimes used to establish the pattern of criminal gang activity were committed for the benefit of, at the direction of, or in association with the criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by members of the criminal street gang, and that the crimes used to establish the pattern of criminal gang activity were committed within 3 years of the date the current offense is alleged to have been committed.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 defendants 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 organization, association, or group of 3 or more persons, whether formal or informal, with an established hierarchy, 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 violent criminal gang activity.
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 two or more of a list of specified 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. 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. Existing law also defines criminal street gang for these purposes.
This bill would also require that the crimes committed to form a pattern of criminal gang activity have commonly benefited at least one specified member of the gang other than the person who committed the offenses and that the common benefit from the offense be more than reputational. The bill would remove burglary, 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. The bill would require that an organization, association, or group of three or more persons have an established hierarchy to meet the definition of a criminal street gang. The bill would require that the prosecution prove that the defendant knows the person or people responsible for committing the offenses used to establish the pattern of criminal gang activity in order to prove the sentencing enhancement.
In order to prove the sentencing enhancement, this bill would require the prosecution to prove that the defendant knows the person or people who committed the offenses used to establish the pattern of criminal gang activity, that the person or people who committed the offenses used to establish the pattern of criminal gang activity were members of the criminal street gang at the time those offenses were committed, that the crimes used to establish the pattern of criminal gang activity were committed for the benefit of, at the direction of, or in association with the criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by members of the criminal street gang, and that the crimes used to establish the pattern of criminal gang activity were committed within 3 years of the date the current offense is alleged to have been committed.
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 defendants 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 organization, association, or group of 3 or more persons, whether formal or informal, with an established hierarchy, 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 violent criminal gang activity.
## Digest Key
## Bill Text
The people of the State of California do enact as follows:SECTION 1. Section 186.22 of the Penal Code, as amended by Section 179 of Chapter 561 of the Statutes of 2017, is amended to read:186.22. (a) A person who actively participates in a 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 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), a person who is convicted of a felony 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 gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which the person 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 courts 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) A person who is convicted of a felony enumerated in this paragraph 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 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 subparagraph (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), a 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) A person who is convicted of a public offense, punishable as a felony or a misdemeanor, that is 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 gang members, shall be punished by imprisonment in a county jail not to exceed one year, or by imprisonment in a state prison for one, two, or three years, provided that a 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 the person 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) (1) 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, the offenses were committed on separate occasions or by two or more persons, the offenses commonly benefited at least one specifically identified member of the gang other than the person who committed the offenses, and the common benefit from the offenses is more than reputational:(A) Assault with a deadly weapon or by means of force likely to produce great bodily injury, as defined in Section 245.(B) Robbery, as defined in Chapter 4 (commencing with Section 211) of Title 8.(C) Unlawful homicide or manslaughter, as defined in Chapter 1 (commencing with Section 187) of Title 8.(D) The sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture a controlled substance as defined in Section 11007 of the Health and Safety Code.(E) Shooting at an inhabited dwelling or occupied motor vehicle, as defined in Section 246.(F) Discharging or permitting the discharge of a firearm from a motor vehicle, as defined in subdivisions (a) and (b) of Section 12034 until January 1, 2012, and, on or after that date, subdivisions (a) and (b) of Section 26100.(G) Arson, as defined in Chapter 1 (commencing with Section 450) of Title 13.(H) The intimidation of witnesses and victims, as defined in Section 136.1.(I) Grand theft, as defined in subdivision (a) or (c) of Section 487.(J) Grand theft of any firearm, vehicle, trailer, or vessel. (K) Rape, as defined in Section 261.(L) Money laundering, as defined in Section 186.10.(M) Kidnapping, as defined in Section 207.(N) Mayhem, as defined in Section 203.(O) Aggravated mayhem, as defined in Section 205.(P) Torture, as defined in Section 206.(Q) Felony extortion, as defined in Sections 518 and 520.(R) Carjacking, as defined in Section 215.(S) The sale, delivery, or transfer of a firearm, as defined in Section 12072 until January 1, 2012, and, on or after that date, Article 1 (commencing with Section 27500) of Chapter 4 of Division 6 of Title 4 of Part 6.(T) 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 until January 1, 2012, and, on or after that date, Section 29610.(U) Threats to commit crimes resulting in death or great bodily injury, as defined in Section 422.(V) Theft and unlawful taking or driving of a vehicle, as defined in Section 10851 of the Vehicle Code. (W) Prohibited possession of a firearm in violation of Section 12021 until January 1, 2012, and, on or after that date, Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.(X) Carrying a concealed firearm in violation of Section 12025 until January 1, 2012, and, on or after that date, Section 25400.(Y) Carrying a loaded firearm in violation of Section 12031 until January 1, 2012, and, on or after that date, Section 25850.(2) The currently charged offense shall not be used to establish the pattern of criminal gang activity.(f) As used in this chapter, criminal street gang means an ongoing organization, association, or group of three or more persons, whether formal or informal, with an established hierarchy, having as one of its primary activities the commission of one or more of the criminal acts enumerated in 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 violent 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 law, for each person committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities 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 Corrections and Rehabilitation, Division of Juvenile Facilities, pursuant to former 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 their 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.(j) In order to prove the sentencing enhancement pursuant to subdivision (b), the prosecution shall prove that all of the following:(1) That the person defendant knows the person or people responsible for committing the offenses used to establish the pattern of criminal gang activity.(2) The person or people who committed the offenses used to establish the pattern of criminal gang activity were members of the criminal street gang at the time those offenses were committed.(3) The crimes used to establish the pattern of criminal gang activity were committed for the benefit of, at the direction of, or in association with, the criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by members of the criminal street gang at issue.(4) The crimes used to establish the pattern of criminal gang activity were committed within 3 years of the date that the current offense was alleged to have been committed.SEC. 2. Section 1109 is added to the Penal Code, to read:1109. (a) If requested by the defense, a case in which a gang enhancement is charged under subdivision (b) or (d) of Section 186.22 shall be tried in separate phases as follows:(1) The question of the defendants guilt of the underlying offense shall be first determined.(2) If the defendant is found guilty of the underlying offense and there is an allegation of an enhancement under subdivision (b) or (d) of Section 186.22, there shall be further proceedings to the trier of fact on the question of the truth of the enhancement. Allegations that the underlying offense was committed for the benefit of, at the direction of, or in association with, a criminal street gang and that the underlying offense was committed with the specific intent to promote, further, or assist in criminal conduct by gang members shall be proved by direct or circumstantial evidence.(b) If a defendant is charged with a violation of subdivision (a) of Section 186.22, this count shall be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime. This charge may be tried in the same proceeding with an allegation of an enhancement under subdivision (b) or (d) of Section 186.22.
The people of the State of California do enact as follows:
## The people of the State of California do enact as follows:
SECTION 1. Section 186.22 of the Penal Code, as amended by Section 179 of Chapter 561 of the Statutes of 2017, is amended to read:186.22. (a) A person who actively participates in a 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 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), a person who is convicted of a felony 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 gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which the person 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 courts 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) A person who is convicted of a felony enumerated in this paragraph 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 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 subparagraph (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), a 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) A person who is convicted of a public offense, punishable as a felony or a misdemeanor, that is 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 gang members, shall be punished by imprisonment in a county jail not to exceed one year, or by imprisonment in a state prison for one, two, or three years, provided that a 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 the person 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) (1) 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, the offenses were committed on separate occasions or by two or more persons, the offenses commonly benefited at least one specifically identified member of the gang other than the person who committed the offenses, and the common benefit from the offenses is more than reputational:(A) Assault with a deadly weapon or by means of force likely to produce great bodily injury, as defined in Section 245.(B) Robbery, as defined in Chapter 4 (commencing with Section 211) of Title 8.(C) Unlawful homicide or manslaughter, as defined in Chapter 1 (commencing with Section 187) of Title 8.(D) The sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture a controlled substance as defined in Section 11007 of the Health and Safety Code.(E) Shooting at an inhabited dwelling or occupied motor vehicle, as defined in Section 246.(F) Discharging or permitting the discharge of a firearm from a motor vehicle, as defined in subdivisions (a) and (b) of Section 12034 until January 1, 2012, and, on or after that date, subdivisions (a) and (b) of Section 26100.(G) Arson, as defined in Chapter 1 (commencing with Section 450) of Title 13.(H) The intimidation of witnesses and victims, as defined in Section 136.1.(I) Grand theft, as defined in subdivision (a) or (c) of Section 487.(J) Grand theft of any firearm, vehicle, trailer, or vessel. (K) Rape, as defined in Section 261.(L) Money laundering, as defined in Section 186.10.(M) Kidnapping, as defined in Section 207.(N) Mayhem, as defined in Section 203.(O) Aggravated mayhem, as defined in Section 205.(P) Torture, as defined in Section 206.(Q) Felony extortion, as defined in Sections 518 and 520.(R) Carjacking, as defined in Section 215.(S) The sale, delivery, or transfer of a firearm, as defined in Section 12072 until January 1, 2012, and, on or after that date, Article 1 (commencing with Section 27500) of Chapter 4 of Division 6 of Title 4 of Part 6.(T) 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 until January 1, 2012, and, on or after that date, Section 29610.(U) Threats to commit crimes resulting in death or great bodily injury, as defined in Section 422.(V) Theft and unlawful taking or driving of a vehicle, as defined in Section 10851 of the Vehicle Code. (W) Prohibited possession of a firearm in violation of Section 12021 until January 1, 2012, and, on or after that date, Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.(X) Carrying a concealed firearm in violation of Section 12025 until January 1, 2012, and, on or after that date, Section 25400.(Y) Carrying a loaded firearm in violation of Section 12031 until January 1, 2012, and, on or after that date, Section 25850.(2) The currently charged offense shall not be used to establish the pattern of criminal gang activity.(f) As used in this chapter, criminal street gang means an ongoing organization, association, or group of three or more persons, whether formal or informal, with an established hierarchy, having as one of its primary activities the commission of one or more of the criminal acts enumerated in 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 violent 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 law, for each person committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities 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 Corrections and Rehabilitation, Division of Juvenile Facilities, pursuant to former 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 their 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.(j) In order to prove the sentencing enhancement pursuant to subdivision (b), the prosecution shall prove that all of the following:(1) That the person defendant knows the person or people responsible for committing the offenses used to establish the pattern of criminal gang activity.(2) The person or people who committed the offenses used to establish the pattern of criminal gang activity were members of the criminal street gang at the time those offenses were committed.(3) The crimes used to establish the pattern of criminal gang activity were committed for the benefit of, at the direction of, or in association with, the criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by members of the criminal street gang at issue.(4) The crimes used to establish the pattern of criminal gang activity were committed within 3 years of the date that the current offense was alleged to have been committed.
SECTION 1. Section 186.22 of the Penal Code, as amended by Section 179 of Chapter 561 of the Statutes of 2017, is amended to read:
### SECTION 1.
186.22. (a) A person who actively participates in a 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 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), a person who is convicted of a felony 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 gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which the person 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 courts 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) A person who is convicted of a felony enumerated in this paragraph 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 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 subparagraph (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), a 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) A person who is convicted of a public offense, punishable as a felony or a misdemeanor, that is 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 gang members, shall be punished by imprisonment in a county jail not to exceed one year, or by imprisonment in a state prison for one, two, or three years, provided that a 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 the person 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) (1) 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, the offenses were committed on separate occasions or by two or more persons, the offenses commonly benefited at least one specifically identified member of the gang other than the person who committed the offenses, and the common benefit from the offenses is more than reputational:(A) Assault with a deadly weapon or by means of force likely to produce great bodily injury, as defined in Section 245.(B) Robbery, as defined in Chapter 4 (commencing with Section 211) of Title 8.(C) Unlawful homicide or manslaughter, as defined in Chapter 1 (commencing with Section 187) of Title 8.(D) The sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture a controlled substance as defined in Section 11007 of the Health and Safety Code.(E) Shooting at an inhabited dwelling or occupied motor vehicle, as defined in Section 246.(F) Discharging or permitting the discharge of a firearm from a motor vehicle, as defined in subdivisions (a) and (b) of Section 12034 until January 1, 2012, and, on or after that date, subdivisions (a) and (b) of Section 26100.(G) Arson, as defined in Chapter 1 (commencing with Section 450) of Title 13.(H) The intimidation of witnesses and victims, as defined in Section 136.1.(I) Grand theft, as defined in subdivision (a) or (c) of Section 487.(J) Grand theft of any firearm, vehicle, trailer, or vessel. (K) Rape, as defined in Section 261.(L) Money laundering, as defined in Section 186.10.(M) Kidnapping, as defined in Section 207.(N) Mayhem, as defined in Section 203.(O) Aggravated mayhem, as defined in Section 205.(P) Torture, as defined in Section 206.(Q) Felony extortion, as defined in Sections 518 and 520.(R) Carjacking, as defined in Section 215.(S) The sale, delivery, or transfer of a firearm, as defined in Section 12072 until January 1, 2012, and, on or after that date, Article 1 (commencing with Section 27500) of Chapter 4 of Division 6 of Title 4 of Part 6.(T) 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 until January 1, 2012, and, on or after that date, Section 29610.(U) Threats to commit crimes resulting in death or great bodily injury, as defined in Section 422.(V) Theft and unlawful taking or driving of a vehicle, as defined in Section 10851 of the Vehicle Code. (W) Prohibited possession of a firearm in violation of Section 12021 until January 1, 2012, and, on or after that date, Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.(X) Carrying a concealed firearm in violation of Section 12025 until January 1, 2012, and, on or after that date, Section 25400.(Y) Carrying a loaded firearm in violation of Section 12031 until January 1, 2012, and, on or after that date, Section 25850.(2) The currently charged offense shall not be used to establish the pattern of criminal gang activity.(f) As used in this chapter, criminal street gang means an ongoing organization, association, or group of three or more persons, whether formal or informal, with an established hierarchy, having as one of its primary activities the commission of one or more of the criminal acts enumerated in 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 violent 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 law, for each person committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities 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 Corrections and Rehabilitation, Division of Juvenile Facilities, pursuant to former 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 their 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.(j) In order to prove the sentencing enhancement pursuant to subdivision (b), the prosecution shall prove that all of the following:(1) That the person defendant knows the person or people responsible for committing the offenses used to establish the pattern of criminal gang activity.(2) The person or people who committed the offenses used to establish the pattern of criminal gang activity were members of the criminal street gang at the time those offenses were committed.(3) The crimes used to establish the pattern of criminal gang activity were committed for the benefit of, at the direction of, or in association with, the criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by members of the criminal street gang at issue.(4) The crimes used to establish the pattern of criminal gang activity were committed within 3 years of the date that the current offense was alleged to have been committed.
186.22. (a) A person who actively participates in a 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 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), a person who is convicted of a felony 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 gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which the person 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 courts 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) A person who is convicted of a felony enumerated in this paragraph 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 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 subparagraph (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), a 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) A person who is convicted of a public offense, punishable as a felony or a misdemeanor, that is 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 gang members, shall be punished by imprisonment in a county jail not to exceed one year, or by imprisonment in a state prison for one, two, or three years, provided that a 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 the person 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) (1) 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, the offenses were committed on separate occasions or by two or more persons, the offenses commonly benefited at least one specifically identified member of the gang other than the person who committed the offenses, and the common benefit from the offenses is more than reputational:(A) Assault with a deadly weapon or by means of force likely to produce great bodily injury, as defined in Section 245.(B) Robbery, as defined in Chapter 4 (commencing with Section 211) of Title 8.(C) Unlawful homicide or manslaughter, as defined in Chapter 1 (commencing with Section 187) of Title 8.(D) The sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture a controlled substance as defined in Section 11007 of the Health and Safety Code.(E) Shooting at an inhabited dwelling or occupied motor vehicle, as defined in Section 246.(F) Discharging or permitting the discharge of a firearm from a motor vehicle, as defined in subdivisions (a) and (b) of Section 12034 until January 1, 2012, and, on or after that date, subdivisions (a) and (b) of Section 26100.(G) Arson, as defined in Chapter 1 (commencing with Section 450) of Title 13.(H) The intimidation of witnesses and victims, as defined in Section 136.1.(I) Grand theft, as defined in subdivision (a) or (c) of Section 487.(J) Grand theft of any firearm, vehicle, trailer, or vessel. (K) Rape, as defined in Section 261.(L) Money laundering, as defined in Section 186.10.(M) Kidnapping, as defined in Section 207.(N) Mayhem, as defined in Section 203.(O) Aggravated mayhem, as defined in Section 205.(P) Torture, as defined in Section 206.(Q) Felony extortion, as defined in Sections 518 and 520.(R) Carjacking, as defined in Section 215.(S) The sale, delivery, or transfer of a firearm, as defined in Section 12072 until January 1, 2012, and, on or after that date, Article 1 (commencing with Section 27500) of Chapter 4 of Division 6 of Title 4 of Part 6.(T) 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 until January 1, 2012, and, on or after that date, Section 29610.(U) Threats to commit crimes resulting in death or great bodily injury, as defined in Section 422.(V) Theft and unlawful taking or driving of a vehicle, as defined in Section 10851 of the Vehicle Code. (W) Prohibited possession of a firearm in violation of Section 12021 until January 1, 2012, and, on or after that date, Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.(X) Carrying a concealed firearm in violation of Section 12025 until January 1, 2012, and, on or after that date, Section 25400.(Y) Carrying a loaded firearm in violation of Section 12031 until January 1, 2012, and, on or after that date, Section 25850.(2) The currently charged offense shall not be used to establish the pattern of criminal gang activity.(f) As used in this chapter, criminal street gang means an ongoing organization, association, or group of three or more persons, whether formal or informal, with an established hierarchy, having as one of its primary activities the commission of one or more of the criminal acts enumerated in 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 violent 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 law, for each person committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities 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 Corrections and Rehabilitation, Division of Juvenile Facilities, pursuant to former 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 their 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.(j) In order to prove the sentencing enhancement pursuant to subdivision (b), the prosecution shall prove that all of the following:(1) That the person defendant knows the person or people responsible for committing the offenses used to establish the pattern of criminal gang activity.(2) The person or people who committed the offenses used to establish the pattern of criminal gang activity were members of the criminal street gang at the time those offenses were committed.(3) The crimes used to establish the pattern of criminal gang activity were committed for the benefit of, at the direction of, or in association with, the criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by members of the criminal street gang at issue.(4) The crimes used to establish the pattern of criminal gang activity were committed within 3 years of the date that the current offense was alleged to have been committed.
186.22. (a) A person who actively participates in a 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 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), a person who is convicted of a felony 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 gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which the person 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 courts 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) A person who is convicted of a felony enumerated in this paragraph 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 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 subparagraph (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), a 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) A person who is convicted of a public offense, punishable as a felony or a misdemeanor, that is 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 gang members, shall be punished by imprisonment in a county jail not to exceed one year, or by imprisonment in a state prison for one, two, or three years, provided that a 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 the person 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) (1) 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, the offenses were committed on separate occasions or by two or more persons, the offenses commonly benefited at least one specifically identified member of the gang other than the person who committed the offenses, and the common benefit from the offenses is more than reputational:(A) Assault with a deadly weapon or by means of force likely to produce great bodily injury, as defined in Section 245.(B) Robbery, as defined in Chapter 4 (commencing with Section 211) of Title 8.(C) Unlawful homicide or manslaughter, as defined in Chapter 1 (commencing with Section 187) of Title 8.(D) The sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture a controlled substance as defined in Section 11007 of the Health and Safety Code.(E) Shooting at an inhabited dwelling or occupied motor vehicle, as defined in Section 246.(F) Discharging or permitting the discharge of a firearm from a motor vehicle, as defined in subdivisions (a) and (b) of Section 12034 until January 1, 2012, and, on or after that date, subdivisions (a) and (b) of Section 26100.(G) Arson, as defined in Chapter 1 (commencing with Section 450) of Title 13.(H) The intimidation of witnesses and victims, as defined in Section 136.1.(I) Grand theft, as defined in subdivision (a) or (c) of Section 487.(J) Grand theft of any firearm, vehicle, trailer, or vessel. (K) Rape, as defined in Section 261.(L) Money laundering, as defined in Section 186.10.(M) Kidnapping, as defined in Section 207.(N) Mayhem, as defined in Section 203.(O) Aggravated mayhem, as defined in Section 205.(P) Torture, as defined in Section 206.(Q) Felony extortion, as defined in Sections 518 and 520.(R) Carjacking, as defined in Section 215.(S) The sale, delivery, or transfer of a firearm, as defined in Section 12072 until January 1, 2012, and, on or after that date, Article 1 (commencing with Section 27500) of Chapter 4 of Division 6 of Title 4 of Part 6.(T) 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 until January 1, 2012, and, on or after that date, Section 29610.(U) Threats to commit crimes resulting in death or great bodily injury, as defined in Section 422.(V) Theft and unlawful taking or driving of a vehicle, as defined in Section 10851 of the Vehicle Code. (W) Prohibited possession of a firearm in violation of Section 12021 until January 1, 2012, and, on or after that date, Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.(X) Carrying a concealed firearm in violation of Section 12025 until January 1, 2012, and, on or after that date, Section 25400.(Y) Carrying a loaded firearm in violation of Section 12031 until January 1, 2012, and, on or after that date, Section 25850.(2) The currently charged offense shall not be used to establish the pattern of criminal gang activity.(f) As used in this chapter, criminal street gang means an ongoing organization, association, or group of three or more persons, whether formal or informal, with an established hierarchy, having as one of its primary activities the commission of one or more of the criminal acts enumerated in 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 violent 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 law, for each person committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities 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 Corrections and Rehabilitation, Division of Juvenile Facilities, pursuant to former 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 their 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.(j) In order to prove the sentencing enhancement pursuant to subdivision (b), the prosecution shall prove that all of the following:(1) That the person defendant knows the person or people responsible for committing the offenses used to establish the pattern of criminal gang activity.(2) The person or people who committed the offenses used to establish the pattern of criminal gang activity were members of the criminal street gang at the time those offenses were committed.(3) The crimes used to establish the pattern of criminal gang activity were committed for the benefit of, at the direction of, or in association with, the criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by members of the criminal street gang at issue.(4) The crimes used to establish the pattern of criminal gang activity were committed within 3 years of the date that the current offense was alleged to have been committed.
186.22. (a) A person who actively participates in a 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 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), a person who is convicted of a felony 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 gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which the person 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 courts 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) A person who is convicted of a felony enumerated in this paragraph 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 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 subparagraph (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), a 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) A person who is convicted of a public offense, punishable as a felony or a misdemeanor, that is 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 gang members, shall be punished by imprisonment in a county jail not to exceed one year, or by imprisonment in a state prison for one, two, or three years, provided that a 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 the person 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) (1) 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, the offenses were committed on separate occasions or by two or more persons, the offenses commonly benefited at least one specifically identified member of the gang other than the person who committed the offenses, and the common benefit from the offenses is more than reputational:
(A) Assault with a deadly weapon or by means of force likely to produce great bodily injury, as defined in Section 245.
(B) Robbery, as defined in Chapter 4 (commencing with Section 211) of Title 8.
(C) Unlawful homicide or manslaughter, as defined in Chapter 1 (commencing with Section 187) of Title 8.
(D) The sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture a controlled substance as defined in Section 11007 of the Health and Safety Code.
(E) Shooting at an inhabited dwelling or occupied motor vehicle, as defined in Section 246.
(F) Discharging or permitting the discharge of a firearm from a motor vehicle, as defined in subdivisions (a) and (b) of Section 12034 until January 1, 2012, and, on or after that date, subdivisions (a) and (b) of Section 26100.
(G) Arson, as defined in Chapter 1 (commencing with Section 450) of Title 13.
(H) The intimidation of witnesses and victims, as defined in Section 136.1.
(I) Grand theft, as defined in subdivision (a) or (c) of Section 487.
(J) Grand theft of any firearm, vehicle, trailer, or vessel.
(K) Rape, as defined in Section 261.
(L) Money laundering, as defined in Section 186.10.
(M) Kidnapping, as defined in Section 207.
(N) Mayhem, as defined in Section 203.
(O) Aggravated mayhem, as defined in Section 205.
(P) Torture, as defined in Section 206.
(Q) Felony extortion, as defined in Sections 518 and 520.
(R) Carjacking, as defined in Section 215.
(S) The sale, delivery, or transfer of a firearm, as defined in Section 12072 until January 1, 2012, and, on or after that date, Article 1 (commencing with Section 27500) of Chapter 4 of Division 6 of Title 4 of Part 6.
(T) 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 until January 1, 2012, and, on or after that date, Section 29610.
(U) Threats to commit crimes resulting in death or great bodily injury, as defined in Section 422.
(V) Theft and unlawful taking or driving of a vehicle, as defined in Section 10851 of the Vehicle Code.
(W) Prohibited possession of a firearm in violation of Section 12021 until January 1, 2012, and, on or after that date, Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.
(X) Carrying a concealed firearm in violation of Section 12025 until January 1, 2012, and, on or after that date, Section 25400.
(Y) Carrying a loaded firearm in violation of Section 12031 until January 1, 2012, and, on or after that date, Section 25850.
(2) The currently charged offense shall not be used to establish the pattern of criminal gang activity.
(f) As used in this chapter, criminal street gang means an ongoing organization, association, or group of three or more persons, whether formal or informal, with an established hierarchy, having as one of its primary activities the commission of one or more of the criminal acts enumerated in 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 violent 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 law, for each person committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities 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 Corrections and Rehabilitation, Division of Juvenile Facilities, pursuant to former 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 their 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.
(j) In order to prove the sentencing enhancement pursuant to subdivision (b), the prosecution shall prove that all of the following:
(1) That the person defendant knows the person or people responsible for committing the offenses used to establish the pattern of criminal gang activity.
(2) The person or people who committed the offenses used to establish the pattern of criminal gang activity were members of the criminal street gang at the time those offenses were committed.
(3) The crimes used to establish the pattern of criminal gang activity were committed for the benefit of, at the direction of, or in association with, the criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by members of the criminal street gang at issue.
(4) The crimes used to establish the pattern of criminal gang activity were committed within 3 years of the date that the current offense was alleged to have been committed.
SEC. 2. Section 1109 is added to the Penal Code, to read:1109. (a) If requested by the defense, a case in which a gang enhancement is charged under subdivision (b) or (d) of Section 186.22 shall be tried in separate phases as follows:(1) The question of the defendants guilt of the underlying offense shall be first determined.(2) If the defendant is found guilty of the underlying offense and there is an allegation of an enhancement under subdivision (b) or (d) of Section 186.22, there shall be further proceedings to the trier of fact on the question of the truth of the enhancement. Allegations that the underlying offense was committed for the benefit of, at the direction of, or in association with, a criminal street gang and that the underlying offense was committed with the specific intent to promote, further, or assist in criminal conduct by gang members shall be proved by direct or circumstantial evidence.(b) If a defendant is charged with a violation of subdivision (a) of Section 186.22, this count shall be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime. This charge may be tried in the same proceeding with an allegation of an enhancement under subdivision (b) or (d) of Section 186.22.
SEC. 2. Section 1109 is added to the Penal Code, to read:
### SEC. 2.
1109. (a) If requested by the defense, a case in which a gang enhancement is charged under subdivision (b) or (d) of Section 186.22 shall be tried in separate phases as follows:(1) The question of the defendants guilt of the underlying offense shall be first determined.(2) If the defendant is found guilty of the underlying offense and there is an allegation of an enhancement under subdivision (b) or (d) of Section 186.22, there shall be further proceedings to the trier of fact on the question of the truth of the enhancement. Allegations that the underlying offense was committed for the benefit of, at the direction of, or in association with, a criminal street gang and that the underlying offense was committed with the specific intent to promote, further, or assist in criminal conduct by gang members shall be proved by direct or circumstantial evidence.(b) If a defendant is charged with a violation of subdivision (a) of Section 186.22, this count shall be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime. This charge may be tried in the same proceeding with an allegation of an enhancement under subdivision (b) or (d) of Section 186.22.
1109. (a) If requested by the defense, a case in which a gang enhancement is charged under subdivision (b) or (d) of Section 186.22 shall be tried in separate phases as follows:(1) The question of the defendants guilt of the underlying offense shall be first determined.(2) If the defendant is found guilty of the underlying offense and there is an allegation of an enhancement under subdivision (b) or (d) of Section 186.22, there shall be further proceedings to the trier of fact on the question of the truth of the enhancement. Allegations that the underlying offense was committed for the benefit of, at the direction of, or in association with, a criminal street gang and that the underlying offense was committed with the specific intent to promote, further, or assist in criminal conduct by gang members shall be proved by direct or circumstantial evidence.(b) If a defendant is charged with a violation of subdivision (a) of Section 186.22, this count shall be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime. This charge may be tried in the same proceeding with an allegation of an enhancement under subdivision (b) or (d) of Section 186.22.
1109. (a) If requested by the defense, a case in which a gang enhancement is charged under subdivision (b) or (d) of Section 186.22 shall be tried in separate phases as follows:(1) The question of the defendants guilt of the underlying offense shall be first determined.(2) If the defendant is found guilty of the underlying offense and there is an allegation of an enhancement under subdivision (b) or (d) of Section 186.22, there shall be further proceedings to the trier of fact on the question of the truth of the enhancement. Allegations that the underlying offense was committed for the benefit of, at the direction of, or in association with, a criminal street gang and that the underlying offense was committed with the specific intent to promote, further, or assist in criminal conduct by gang members shall be proved by direct or circumstantial evidence.(b) If a defendant is charged with a violation of subdivision (a) of Section 186.22, this count shall be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime. This charge may be tried in the same proceeding with an allegation of an enhancement under subdivision (b) or (d) of Section 186.22.
1109. (a) If requested by the defense, a case in which a gang enhancement is charged under subdivision (b) or (d) of Section 186.22 shall be tried in separate phases as follows:
(1) The question of the defendants guilt of the underlying offense shall be first determined.
(2) If the defendant is found guilty of the underlying offense and there is an allegation of an enhancement under subdivision (b) or (d) of Section 186.22, there shall be further proceedings to the trier of fact on the question of the truth of the enhancement. Allegations that the underlying offense was committed for the benefit of, at the direction of, or in association with, a criminal street gang and that the underlying offense was committed with the specific intent to promote, further, or assist in criminal conduct by gang members shall be proved by direct or circumstantial evidence.
(b) If a defendant is charged with a violation of subdivision (a) of Section 186.22, this count shall be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime. This charge may be tried in the same proceeding with an allegation of an enhancement under subdivision (b) or (d) of Section 186.22.