Gang Enhancements in California: How AB 333 Changed The Old Law

In 1987, California passed the Street Terrorism Enforcement and Prevention Act (STEP Act). The California legislature’s goal was to address the increasing criminal activities by street gangs and through the STEP Act it imposed a three-year sentencing enhancement for gang related crimes. Proponents of the law claimed that it would be applied narrowly and only in cases of serious and violent crimes and where the prosecution has clearly demonstrated a pattern of criminal activity. However, since its enactment, through legislation and court rulings, the severity of the STEP Act gang enhancements increased and their application broadened exponentially. The reality is that these enhancements have resulted in overly punitive and mandatory sentences for non-violent crimes and even misdemeanors, and in many cases have led to life sentences.

Needless to say, the end result of the STEP Act has been devastating and has caused an immeasurable damage to entire neighborhoods and communities. For defendants, a gang member designation can have a very negative impact through their entire interaction with the criminal system, including pretrial release, sentencing, incarceration, parole, reentry, and for non-citizens an almost guaranteed deportation.

In 2020, Governor Newsom commissioned the Committee on Revision of the Penal Code to examine the California Penal Code and to issue recommendations for reform. According to the Committee’s 2020 report, the STEP Act has been applied inconsistently and has disproportionately affected communities of color. Furthermore, the report pointed out that while between 2011 and 2019 California reduced its prison population, during the same period, the number of inmates who were serving gang enhancements increased by approximately 40 percent. Moreover, according to the report, in Los Angeles, more than 98 percent of defendants with gang enhancements were people of color.

The report went further in pointing out that gang enhancement evidence are regularly grouped together with evidence of the underlying charges, which makes those evidence not only unreliable, but highly and unfairly prejudicial to a jury. In addition, because of the lax standards of proof, many people have unjustly been lumped into gang networks simply because of their families or communities. Finally, there have been no evidence to show that the wide imposition of gang enhancements has been an effective deterrent to gang related crimes or violence.

As a result of the report and other studies, the California legislature passed Assembly Bill 333 or the STEP Forward Act of 2021, which came into effect on January 1, 2022. The purpose of AB 333 was to address the inequities caused by the STEP Act and its subsequent amendments by redefining certain terms and making the standards for applying gang enhancements more rigorous, so that they are used only when it is necessary and fair. The most important changes in the law include:

• Removing certain crimes from the list of crimes eligible for gang enhancement charge. The new law removes looting, felony vandalism, and certain identity fraud violations from the list of offenses that can be used to establish a “pattern of criminal gang activity.”
• Redefining a “pattern of criminal gang activity.” The new law requires that in order to form a pattern of criminal gang activity, the crimes committed must be shown to have commonly benefited a criminal street gang and that benefit has to be more than reputational, such as financial gain, retaliation, gang rival targeting, or intimidating witnesses.
• Moreover, AB 333 explicitly prohibits the use of the crime being prosecuted to prove a pattern of criminal activity.
• Finally, the STEP Forward Act added Section 1109 to the California Penal Code, which requires that, if requested by the defense, the underlying offense must be proven first, and only if there is a finding of guilt, there should be further and separate proceedings on the truth of the gang enhancement.

At the Justice Firm, our highly skilled and experienced attorneys continuously follow the new developments in California’s laws and are always prepared to fight for our clients for lesser penalties, sentence reductions, and appeal of sentences or convictions.

We understand that the attorney-client relationship is an important aspect of your legal journey and our highly knowledgeable and compassionate attorneys are here to help and answer any questions you might have. If you or a loved one has questions about this law, or if you think that AB 333 could impact your case, contact our California criminal attorneys today for a case evaluation locally at (310) 914-2444 or at our Toll-Free number at (866) 695-6714, or click here.