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
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.
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.
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.
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.