Expert Article Library

An Analysis Of Gang Roles And Gang Laws

by Lewis Yablonsky, PhD.

By:  Lewis Yablonsky, PhD.  E-mail: yablonsky@loop.com

In the past 10 years I have served as an expert-witness in over 25 criminal cases.  In this context, I have specialized in over 15 gang violence cases--most of them involving homicide. A significant aspect of my preparation for a case has involved determining the level of participation in a gang by an individual accused of gang violence.  I have found that this is necessary in the context of prosecutors and police officers rushing to judgment on labelling defendants as "gang members."   The following issues are involved in accurately determining who is and who is not legally a "gang-member."

A significant factor to be considered in a trial involving a gang or a gang member is his role in the gang.  In this regard, based on my research, I have delineated 5 basic types of gang roles and non-roles: (1) "OG's" or "Veteranos" are longtime core gangsters dedicated to their gang.  They are individuals who have "put in work" and "made their stripes"; (2) "Gs" are gangsters who comprise the general troops or soldiers in the gang; (3) "Wannabees" are young interns aspiring to become gangsters; (4) "Gangster-groupies" comprise a relatively new category of youths who do not ordinarily participate in criminal gang activity but gravitate to and apparerntly enjoy hanging-out with gangsters out of their own ego needs and intrigue with the gangster life-style.  They tend to dress and talk like Gs; (5) "Resident Gs" are young men who have grown up in a gang neighborhood. Literally, some of their best friends are Gs. They often hang-out, dress in G clothes-styles, go to school, and party with Gs from their neighborhood (e.g., Nava).  Although they lead a legal and constructive life, they are often identified by the police as gang "Associates."  They are often falsely labelled as Gs by police ID as "associates", and their self-concept is that they do not belong to a gang.

These two latter categories of less culpable youths, G-groupies and "Resident Gs" are too often caught in the net of a violent gang incident, identified as co-conspirators, and become subject to the overkill punishment of imprisonment that is meted out to the more involved gangsters under "Gang-Enhancement" laws.  As an expert witness, after careful analysis and interrogation of a defendant, I can make these distinctions in my reports in rendering a just decision on a defendants guilt or innocent in a gang crime.

A significant factor in the complex of gang activity and behavior is the California Gang-Enhancement Law. In the context of this laws, police and prosecutors too often squeeze deviant behavior into gang behavior, and erroneously prosecute a youth for gang behavior, when they are innocent of this offense.

For analysis purposes, the following are the main elements of Penal Code 186.22, often referred to as the "gang-enhancement law". The law states in part that: "Every person who actively participates in any criminal street gang with knowledge that the members are engaging in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, is guilty of a violation of Penal Code section 186.22, subdivision, a crime ..."

"Criminal street gang means any ongoing organization, association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of [crime list.]  Active participation means that the person (1) must have a current relationship with the criminal street gang that is more than in name only, passive, inactive or purely technical, and (2) must devote all, or a substantial part a [his] [her] time or efforts to the criminal street gang."

"In order to prove this crime [a gang crime], each of the following elements must be proved: 1.  A person actively and currently participated in a criminal street gang; 2. The members of that gang engaged in or have engaged in a pattern of criminal gang activity; 3. That person knew that the gang members engaged in or have engaged in a pattern of criminal gang activity; and 4. That the person aided and abetted member[s] of that gang in committing the crime[s]."

A factor that needs to be added into the analysis of the gang law is that simple membership in a gang does not prove the intent to commit a crime. For example, in an opinion rendered in an appeal case (Superior Courts 95CF2769 and J-161645), one Appeal's Court Judge stated: "... mere presence at the scene of the crime which does not itself assist the commission of the crime does not amount to aiding and abetting."  Another significant statement in the Appeals Court decision stated: "Evidence that a person was in the company of or associated with one or more persons alleged or proved to have been members of a conspiracy, is not, in itself, sufficient to prove that such a person was a member of the alleged conspiracy."

In brief, association with other gang members "without more" ["more" in the words of an appellate judge means more evidence], does not make an individual gang member guilty of the crimes of others, "unless there is an act of backup."  In other words, you can't convict someone as having committed a crime through the disproved time-worn concept of "guilt by association."

Another aspect of this analysis of gang culpability, is that a gang member may commit a crime that has nothing to do with his participation in his gang.  A few examples make this point.  A gang member may be carrying a weapon for self-protection, and his being armed has nothing to do with his gang affiliation.  A "made" member of the mafia may kill a man who he finds in bed with his wife--and the murder has nothing to do with a mafia crime in the context of RICO (Racketeer-Influenced-Corruption-Organization) gangster laws.  In brief, a violent act committed by a youth unrelated to his gang affiliation does not warrant the activation of the gang-enhancement law at his trial.