For the following blog to make sense, please read my February 2, 2010 “Gang Enhancement Math; 1 + 1 +1 = Life in Prison” blog first, as the following is a continuation of that writing.
…So, in my last blog entry, we’ve seen where belonging to a gang was the difference between four years and a life sentence. Here’s another example:
Penal Code §136.1(a) defines the offense of Intimidating a Witness.
(a) Except as provided in subdivision (c), any person who does any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison:
(1) Knowingly and maliciously prevents or dissuades any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.
(2) Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.
Let me add that, as an attorney, I find the crime of intimidating a witness to be particularly reprehensible. Justice cannot be served without free access of witnesses to testify at court without fear of harm.
Nevertheless, I believe that the punishment reserved for a gang-member accused of a Penal Code §136.1 offense as punishable under Penal Code §186.22 to be equally unjust under the law, and to embody the type of “cruel and unusual punishment” prohibited by our Constitution.
Imagine a situation where a group of gang members and a group of professional athletes are all out at a nightclub. A fight breaks out over a spilled drink. The gang members and professional athletes all throw punches, and as they are running away from the police and nightclub security they yell at the patrons “nobody had better say anything about this.” The gang members make gang -gestures with their hands, and one of the professional athletes does a bizarre “lights-off” dance. Though the professional athletes and gang members are all guilty of dissuading witnesses to the fight, violating Penal Code §136.1(a), the athletes are at worst exposed to three years in prison, while the gang members are exposed to a life sentence.
As stated in my previous blog on this subject, gang members are subject to the special indeterminate sentence punishments of
Penal Code §186.22:
(4)
Any person who is convicted of a felony enumerated in this paragraph committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of:
(A) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 3046, if the felony is any of the offenses enumerated in subparagraph (B) or (C) of this paragraph.
(B) Imprisonment in the state prison for 15 years, if the felony is a home invasion robbery, in violation of subparagraph (A) of paragraph (1) of subdivision (a) of Section 213; carjacking, as defined in Section 215; a felony violation of Section 246; or a violation of Section 12022.55.
(C)
Imprisonment in the state prison for seven years, if the felony is extortion, as defined in Section 519;
or threats to victims and witnesses, as defined in Section 136.1.
So, for a professional athlete to “knowingly and maliciously prevent or dissuade any witness or victim from attending or giving testimony at trial,” committing the offense of Penal Code §136.1(a), the athlete may be punished by a year in county jail or 16 months/2 years/3 years in State Prison. For a gang member to commit the exact same offense, under the same set of facts, the gang member will be subject to an indeterminate sentence of 10 years to life in prison for the Penal Code §136.1 offense (3 years for the base offense + 7-Life under Penal C ode §186.22(4)(c).
Like I mentioned in my last blog, theoretically the gang members would be eligible for parole after ten years, but their chances of parole are smaller than a gnat’s eyelash. Little Johnny, if you are still reading, don’t join a gang!