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Can gang enhancement charges still stick to a defendant that has no priors or gang history?

Stockton, CA |

a defendant that has no gang priors but has gang enhancement charges because his co defendant is a gang member.. The codefendant has a hung jury, can the first defendant still be charged for gang enhancement since the known co defendant has not been charged with any charges?
The first defendant only has gang charges because his co defendant is a known gang member... but the known gang member has a hung jury....Can the gang enhancement charges get motioned before his sentencing?

Attorney Answers 4

Posted

I think you are a bit confused with terminology. The defendant with no gang history can be charged with the gang enhancement but if he is not a gang member and did not commit the acts to benefit the street gang, then the Allegation will not suffice.

During sentencing, a defendant's gang history can be brought up even if the Allegation was dropped or not sustained.

Seth Weinstein, Esq.
Practicing throughout Southern California
(310) 707-7131
www.sethweinsteinlaw.com

This reply should NOT be considered a legal opinion of your case / inquiry. At this time I do not have sufficient factual/legal documentation to give a complete answer to your question and there may be more to the issues you raised then I have set out in my brief reply.

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Posted

My boyfriend has no gang priors and is not a member of a gang.. he has gang charges now because his codefendant is a gang member and the are fighting the case together. The codefendant has a hung jury.. can the first defendant who is not a gang member still be charged for gang enhancement if his codefendant has a hung jury?

Seth Andrew Weinstein

Seth Andrew Weinstein

Posted

Wasn't their trial together? The hung jury only applies to the codefendant it sounds like. Seth Weinstein, Esq. Practicing throughout Southern California (310) 707-7131 www.sethweinsteinlaw.com

Asker

Posted

Yes their trial was together and it seems to me that the jury got the defendants mixed up because the one that was charged was not the one that was identified...and he didn't meet the description... the verdict was unbelievable...

Posted

Your facts are very confusing. If there are two co-defendants they were tried together. So one got a hung jury; what did the other one get. I take it that since he's going to be sentenced he was found guilty. Is there a motion between verdict and sentencing that could change things? Yes a motion for a new trial but only his attorney can evaluate whether that is appropriate under the facts here.

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Posted

Sorry for the confusion..yes the other defendant was found guilty... and his attorney is filing a motion for retrial .

Posted

I practice in the San Joaquin County Courts. Mr. Kaman is correct. Generally, co-defendants are tried together.
Mr. Kaman is also correct as to your question. It is phrased in a very confusing manner.
Suggest that you ask the attorney who represented the defendant about whose case you are inquiring.That person would have more and better information with which to give a good answer.

The above is not intended as legal advice. The response does not constitute the creation of an attorney client relationship as this forum does not provide for a confidential communication.

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Posted

Yes - a person with no prior record or gang history can be found guilty of a crime with a gang enhancement.

Yes - this can happen even if the codefendant, who is a gang member, was not found guilty of an underlying charge with a gang enhancement.

Yes - during trial the prosecution goes first. They present evidence to support every element of the crime with which you are being charged. When the prosecution is finished, and before the defense starts their case, the defense can motion the court to dismiss any of the charges and/or enhancements that the prosecution did not successfully prove.

I hope that helped to answer your questions. You should definitely speak with an attorney if you do not already have one - which it seems like you should at this point.

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