Utah Code 76-3-203.1 - Gang Enhancements

Offenses Committed In Concert with Two or More Persons

Enhanced (increased) penalties can be imposed under Utah Code 76-3-203.1 for both felony and misdemeanor convictions if a prosecutor can prove that the crime was committed in connection with gang activity or in concert with two or more persons. These enhanced penalties can be severe. For example, a 0-5 year prison term for a third degree felony can become a 1-15 year sentence. A second degree felony 1-15 year prison term can be enhanced to a potential sentence of life in prison.

If you are facing criminal charges in Utah, the assistance of an experienced criminal defense attorney can help give you the best chance of successfully defending your case. Based in Salt Lake City, criminal lawyer Stephen Howard has spent his career defending the rights of people charged with serious felony and misdemeanor crimes. He provides legal services to clients throughout Utah. Contact us today to arrange for a confidential consultation.

What constitutes a "criminal street gang" in Utah?

The concept of a "criminal street gang" is very broadly defined for purposes of Utah's gang enhancement statute. The definition found in Utah Code 76-9-802 does not require all of the formal organization, recognition, gang name, signs, colors, and other indicia often associated with a gang. The statute does require some identifying name, sign, or symbol. But the focus of the statute is less on formal associations or organizations, instead looking more at the actual actions and intent of any group of three or more individuals.

For a group or association to be considered a criminal street gang under the statute, a prosecutor must prove the following elements:

• the group is currenly in operation;
• the group has as one of its primary activities the commission of one or more predicate gang crimes (see Utah Code 76-9-802(5) for a definition of "predicate gang crimes");
• the group has an identifying name or identifying sign or symbol, or both; and
• the members of the group, acting individually or in concert with other members, engage in or have engaged in a pattern of criminal gang activity.

Enhanced penalties cannot be imposed simply because the defendant is determined to be a member of a recognized criminal street gang. Increased penalties under such a statute would likely be found to be an unconstitutional "status crime" enhancement. Instead, Utah's gang enhancement requires a prosecutor to show that the crime was committed either "for the benefit of, at the direction of, or in association with any criminal street gang" or for the purpose of "gain[ing] recognition, acceptance, membership, or increased status with a criminal street gang."

Can enhanced penalties be imposed if the crime did not involve a "gang"?

The "gang" enhancements under Utah Code 76-3-203.1 apply more broadly than just to "criminal street gangs" as defined by the Utah Code. The enhanced penalties provided by this statute also apply to crimes committed simply "in concert with" two or more other people.

In order to show that a person acted 'in concert with" two or more other people, a prosecutor must prove that the defendant was aided or encouraged in committing the crime by two other persons, and that the defendant was aware of this aid or encouragement. The prosecutor also must prove that each of the other individuals was either physically present when the crime was committed or participated as a party to the offense.

Can enhanced penalties apply if no one else is charged?

Before the enhanced penalties can be imposed, a prosecutor must prove the involvement of other individuals. But it is not necessary for the prosecutor to charge or convict these other individuals.

In some cases, police may not be able to identify or apprehend the other people involved in a gang crime. This failure does not prevent a prosecutor from seeking or stop a court from imposing the enhanced penalties for gang or "group criminal activity" so long as the other required elements are proven.

What are the increased penalties?

The enhancements under Utah Code 76-3-203.1 apply only to felony charges and to class A and class B misdemeanor charges. For each offense, the level of the offense is increased by one step. For example, a class A misdemeanor becomes a third degree felony; and a second degree felony can become a first degree felony.

If the charge would otherwise be a first degree felony, the gang enhancement adds an additional indeterminate prison term of up to five years in addition to any statutory minimum prison term for the offense. The maximum prison term may still be life in prison.

What offenses are subject to enhanced penalties for gang activity?

Not all Utah crimes are subject to enhancement for conduct which is gang-related or is committed "in concert with" two or more other individuals. But the list of offenses under Utah Code 76-3-203.1(5) is substantial, including: drug crimes; assault and related offenses; homicide; kidnapping; sex offenses; child pornography; property destruction; burglary; robbery; theft; shoplifting; fraud; witness tampering; trespass; explosives and weapons charges; prostitution; money laundering; and more.

Finding a Utah Criminal Defense Attorney in Salt Lake City

Based in Salt Lake City, criminal defense attorney Stephen Howard has a track record that includes not guilty verdicts and dismissals for some of the most serious charges on the books in Utah. Each case is unique, and the advice and assistance of an experienced criminal lawyer can be critical to achieving the best results in your case.

Mr. Howard provides legal services to clients throughout Utah. Contact us today to arrange for an initial confidential consultation.

RELATED CRIMINAL CODE SECTIONS AND QUESTIONS

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