Solving the Riddle of Gang-Related Crime Under Penal Code Section 186.22(b)

Nineteen Years of Confusion

Almost twenty years of STEP Act jurisprudence have yielded nothing but an array of conflicting appellate opinions attempting valiantly, yet failing miserably, to solve the riddle of what exactly constitutes a gang-related offense subject to a penalty enhancement under Penal Code section 186.22(b). The California Supreme Court (which once described the STEP Act as presenting a "thicket of statutory construction issues") has yet to address the issue of gang-relatedness as defined by section 186.22(b), leaving the lower courts and the Ninth Circuit to come up with the following variety of opinions:

First District:
Defendant’s gang membership insufficient to prove gang-relatedness of charged offense
People v. Martinez (2004) 116 Cal.App.4th 753 (disagreeing with the Third District in Hill)

Second District:
Co-defendant’s gang membership sufficient to prove gang-relatedness of charged offense
People v. Romero (2006) 140 Cal.App.4th 15 (disagreeing with the Ninth Circuit in Garcia)

Third District:
Defendant’s gang membership sufficient to prove gang-relatedness of charged offense
People v. Hill (2006) 142 Cal.App.4th 770 (disagreeing with the First District in Martinez and the Fifth District in Frank S.)

Fourth District:
Co-defendant’s gang membership creates strong inference of gang-related charged offense, rebuttable by evidence that the charged offense is a non-gang-motivated "frolic and detour"
People v. Morales (2003) 112 Cal.App.4th 1176 (disagreeing with the Ninth Circuit in Garcia; disagreeing in part with the Second District in Romero)

Fifth District:
Defendant’s gang membership insufficient to prove gang-relatedness of charged offense: co-defendant’s gang membership may be sufficient
In re Frank S. (2006) 141 Cal.App.4th 1192 (disagreeing with the Third District in Hill; agreeing in part with the First District in Martinez and the Ninth Circuit in Garcia)

Ninth Circuit:
Defendant and co-defendant’s gang membership irrelevant: to be gang-related, the charged offense must be committed with the intent to facilitate specific secondary gang crime
Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (disagreeing with the Second District in Romero, the Third District in Hill and the Fourth District in Morales)

The above cases all fail to adequately define gang-relatedness within the spirit of the STEP Act for a number of different reasons:

Martinez and Frank S. simply tell us that a defendant’s gang affiliation on its own does not automatically render any crime by that defendant gang-related. Neither case expressly states what would render a crime gang-related, although the Fifth District in Frank S. appeared to require that there be evidence that the charged offense have a gang-related purpose.

Romero imposes a gang-related enhancement for crimes with no gang-related purpose committed by any person with one or more gang member co-defendants, thus defining gang-relatedness by membership alone, as well as absurdly and unjustly punishing non-gang-member defendants more harshly than gang member co-defendants engaging in the exact same criminal conduct.

Although Romero cites Morales with approval, Morales at least acknowledges that gang members––even in groups—can commit crimes that are not gang-related. The problem with Morales, however, is that it appears to shift the burden to the defense to present evidence that an offense committed by gang members is not gang-related.

The Hill theory that any crime committed by a lone gang member is automatically gang-related because a gang member defendant facilitates gang crime merely by facilitating his own crime is just plain silly, and it unconstitutionally punishes mere gang membership.

Garcia is too narrow in that it requires facilitation of secondary criminal activity. The Ninth Circuit failed to recognize that there may be offenses committed by multiple or even lone defendants that in and of themselves are gang-related within the spirit of the STEP Act without regard to the potential impact on other gang activity.

The Riddle Solved

The Morales court came the closest to solving the riddle when it spoke in terms of agency and capacity by using the tort law term of art "frolic and detour," i.e., conduct falling outside the scope of one’s agency.

The key is not whether the defendant, or those he assists, are gang members—a term undefined by statute or case law and vulnerable to a variety of different meanings; rather, the key to solving the riddle is whether the defendant acts in the capacity of an agent of the gang. Such a definition would exclude the conduct defined by the holdings of Romero and Hill as gang-related, but would include conduct beyond that defined by Garcia. For example, the successful completion of many assaultive crimes is often facilitated by the invocation of a gang’s name (whether verbally or otherwise)—something which would likely induce submission and deter reporting. In those instances, a defendant acts overtly as an agent of the gang for the specific purpose of facilitating completion of that crime alone, with only the incidental effect of facilitating other gang crime by enhancing the gang’s reputation for intimidation and subduing the surrounding community. Despite not meeting the requirements of Garcia—i.e., the defendant must have the intent to facilitate specific other gang crime—such crimes would clearly be gang-related within the spirit of the STEP Act, and subject to a penalty enhancement, in addition, of course, to those that do meet the requirements of Garcia.

One can only hope that when the California Supreme Court finally addresses the issue of the STEP Act’s gang enhancement, as it one day must, it will secure some uniformity and consistency in the application of the enhancement by crafting a definition that recognizes what should be obvious to an unbiased observer; just as not all crimes committed by white supremacists are hate crimes, not all crimes committed by gang members are gang-related crimes. Until that day, trial courts have the luxury of crafting their own definitions in anticipation of the Supreme Court’s inevitable wise pronouncement, using the best parts of a variety of definitions from the state’s appellate courts and the Ninth Circuit. The Fifth District's recent holding in Frank S. that a defendant’s gang affiliation alone does not make a crime gang-related would seem a good place to start, followed by the Fourth District’s astute observation in Morales that to be gang-related, a crime must be committed by someone acting as an agent of a criminal street gang.