ARSANY LAW CRIMINAL DEFENSE ATTORNEY

Criminal Defense Attorney


DRUG CRIMES

Health & Safety Code 11350- Possession of a Controlled Substance

11350. (a) Except as otherwise provided in this division, every person who possesses
(1) any controlled substance specified in subdivision (b), (c), (e), or paragraph (1) of
subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of
subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section
11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance
classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written
prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in
this state, shall be punished by imprisonment in a county jail for not more than one
year, except that such person shall instead be punished pursuant to subdivision (h) of
Section 1170 of the Penal Code if that person has one or more prior convictions for
an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision
(e) of Section 667 of the Penal Code or for an offense requiring registration pursuant
to subdivision (c) of Section 290 of the Penal Code.
(b) Except as otherwise provided in this division, whenever a person who possesses
any of the controlled substances specified in subdivision (a), the judge may, in addition
to any punishment provided for pursuant to subdivision (a), assess against that person
a fine not to exceed seventy dollars ($70) with proceeds of this fine to be used in
accordance with Section 1463.23 of the Penal Code. The court shall, however, take
into consideration the defendant’s ability to pay, and no defendant shall be denied
probation because of his or her inability to pay the fine permitted under this
subdivision.
(c) Except in unusual cases in which it would not serve the interest of justice to
do so, whenever a court grants probation pursuant to a felony conviction under this
section, in addition to any other conditions of probation which may be imposed, the
following conditions of probation shall be ordered:
(1) For a first offense under this section, a fine of at least one thousand dollars
($1,000) or community service.
(2) For a second or subsequent offense under this section, a fine of at least two
thousand dollars ($2,000) or community service.
(3) If a defendant does not have the ability to pay the minimum fines specified in
paragraphs (1) and (2), community service shall be ordered in lieu of the fine.
(d) It is not unlawful for a person other than the prescription holder to possess a
controlled substance described in subdivision (a) if both of the following apply:
(1) The possession of the controlled substance is at the direction or with the express
authorization of the prescription holder.(2) The sole intent of the possessor is to deliver the prescription to the prescription
holder for its prescribed use or to discard the substance in a lawful manner.
(e) This section does not permit the use of a controlled substance by a person other
than the prescription holder or permit the distribution or sale of a controlled substance
that is otherwise inconsistent with the prescription.
(Amended (as amended by Proposition 47) by Stats. 2017, Ch. 269, Sec. 4. (SB 811) Effective January
1, 2018. Note: This section was amended on Nov. 4, 2014, by initiative Prop.47.)

Healthy & Safety Code 11351- Possession for Sales

11351. Except as otherwise provided in this division, every person who possesses
for sale or purchases for purposes of sale (1) any controlled substance specified in
subdivision (b), (c), or (e) of Section 11054, specified in paragraph (14), (15), or (20)
of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section
11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance
classified in Schedule III, IV, or V which is a narcotic drug, shall be punished by
imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two,
three, or four years.
(Amended by Stats. 2011, Ch. 15, Sec. 152. (AB 109) Effective April 4, 2011. Operative October 1,
2011, by Sec. 636 of Ch. 15, as amended by Stats. 2011, Ch. 39, Sec. 68.)

Healthy & Safety Code 11352- Sales or Transportation of a Controlled Substance

11352. (a) Except as otherwise provided in this division, every person who transports,
imports into this state, sells, furnishes, administers, or gives away, or offers to transport,
import into this state, sell, furnish, administer, or give away, or attempts to import
into this state or transport (1) any controlled substance specified in subdivision (b),
(c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph
(14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b)
or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any
controlled substance classified in Schedule III, IV, or V which is a narcotic drug,
unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian
licensed to practice in this state, shall be punished by imprisonment pursuant to
subdivision (h) of Section 1170 of the Penal Code for three, four, or five years.
(b) Notwithstanding the penalty provisions of subdivision (a), any person who
transports any controlled substances specified in subdivision (a) within this state from
one county to another noncontiguous county shall be punished by imprisonment
pursuant to subdivision (h) of Section 1170 of the Penal Code for three, six, or nine
years.
(c) For purposes of this section, “transports” means to transport for sale.
(d) This section does not preclude or limit the prosecution of an individual for
aiding and abetting the commission of, or conspiring to commit, or acting as an
accessory to, any act prohibited by this section.
(Amended by Stats. 2014, Ch. 54, Sec. 7. (SB 1461) Effective January 1, 2015.)

Healthy & Safety Code 11337- Possession of Methamphetamine

11377. (a) Except as authorized by law and as otherwise provided in subdivision
(b) or Section 11375, or in Article 7 (commencing with Section 4211) of Chapter 9
of Division 2 of the Business and Professions Code, every person who possesses any
controlled substance which is (1) classified in Schedule III, IV, or V, and which is
not a narcotic drug, (2) specified in subdivision (d) of Section 11054, except paragraphs
(13), (14), (15), and (20) of subdivision (d), (3) specified in paragraph (11) of
subdivision (c) of Section 11056, (4) specified in paragraph (2) or (3) of subdivision
(f) of Section 11054, or (5) specified in subdivision (d), (e), or (f) of Section 11055,
unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed
to practice in this state, shall be punished by imprisonment in a county jail for a period
of not more than one year, except that such person may instead be punished pursuant
to subdivision (h) of Section 1170 of the Penal Code if that person has one or more
prior convictions for an offense specified in clause (iv) of subparagraph (C) of
paragraph (2) of subdivision (e) of Section 667 of the Penal Code or for an offense
requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code.
(b) The judge may assess a fine not to exceed seventy dollars ($70) against any
person who violates subdivision (a), with the proceeds of this fine to be used in
accordance with Section 1463.23 of the Penal Code. The court shall, however, take
into consideration the defendant’s ability to pay, and no defendant shall be denied
probation because of his or her inability to pay the fine permitted under this
subdivision.
(c) It is not unlawful for a person other than the prescription holder to possess a
controlled substance described in subdivision (a) if both of the following apply:
(1) The possession of the controlled substance is at the direction or with the express
authorization of the prescription holder.
(2) The sole intent of the possessor is to deliver the prescription to the prescription
holder for its prescribed use or to discard the substance in a lawful manner.
(d) This section does not permit the use of a controlled substance by a person other
than the prescription holder or permit the distribution or sale of a controlled substance
that is otherwise inconsistent with the prescription.
(Amended (as amended by Proposition 47) by Stats. 2017, Ch. 269, Sec. 6. (SB 811) Effective January
1, 2018. Note: This section was amended on Nov. 4, 2014, by initiative Prop. 47.)

Penal Code 186.22- Gang Enhancements

(a) A person who actively participates in a criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.

(b) (1) Except as provided in paragraphs (4) and (5), a person who is convicted of a felony committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which the person has been convicted, be punished as follows:

(A) Except as provided in subparagraphs (B) and (C), the person shall be punished by an additional term of two, three, or four years at the court’s discretion.

(B) If the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years.

(C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years.

(2) If the underlying felony described in paragraph (1) is committed on the grounds of, or within 1,000 feet of, a public or private elementary, vocational, junior high, or high school, during hours in which the facility is open for classes or school-related programs or when minors are using the facility, that fact shall be a circumstance in aggravation of the crime in imposing a term under paragraph (1).

(3) The court shall select the sentence enhancement that, in the court’s discretion, best serves the interests of justice and shall state the reasons for its choice on the record at the time of the sentencing in accordance with the provisions of subdivision (d) of Section 1170.1.

(4) A person who is convicted of a felony enumerated in this paragraph committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in 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.

(5) Except as provided in paragraph (4), a person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served.

(c) If the court grants probation or suspends the execution of sentence imposed upon the defendant for a violation of subdivision (a), or in cases involving a true finding of the enhancement enumerated in subdivision (b), the court shall require that the defendant serve a minimum of 180 days in a county jail as a condition thereof.

(d) A person who is convicted of a public offense, punishable as a felony or a misdemeanor, that is committed for the benefit of, at the direction of, or in association with, a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members, shall be punished by imprisonment in a county jail not to exceed one year, or by imprisonment in a state prison for one, two, or three years, provided that a person sentenced to imprisonment in the county jail shall be imprisoned for a period not to exceed one year, but not less than 180 days, and shall not be eligible for release upon completion of sentence, parole, or any other basis, until the person has served 180 days. If the court grants probation or suspends the execution of sentence imposed upon the defendant, it shall require as a condition thereof that the defendant serve 180 days in a county jail.

(e) (1) As used in this chapter, “pattern of criminal gang activity” means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of, two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter, and the last of those offenses occurred within three years of the prior offense and within three years of the date the current offense is alleged to have been committed, the offenses were committed on separate occasions or by two or more members, the offenses commonly benefited a criminal street gang, and the common benefit of the offense is more than reputational:

(A) Assault with a deadly weapon or by means of force likely to produce great bodily injury, as defined in Section 245.

(B) Robbery, as defined in Chapter 4 (commencing with Section 211) of Title 8.

(C) Unlawful homicide or manslaughter, as defined in Chapter 1 (commencing with Section 187) of Title 8.

(D) The sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture a controlled substance as defined in Section 11007 of the Health and Safety Code.

(E) Shooting at an inhabited dwelling or occupied motor vehicle, as defined in Section 246.

(F) Discharging or permitting the discharge of a firearm from a motor vehicle, as defined in subdivisions (a) and (b) of Section 12034 until January 1, 2012, and, on or after that date, subdivisions (a) and (b) of Section 26100.

(G) Arson, as defined in Chapter 1 (commencing with Section 450) of Title 13.

(H) The intimidation of witnesses and victims, as defined in Section 136.1.

(I) Grand theft, as defined in subdivision (a) or (c) of Section 487.

(J) Grand theft of any firearm, vehicle, trailer, or vessel.

(K) Burglary, as defined in Section 459.

(L) Rape, as defined in Section 261.

(M) Money laundering, as defined in Section 186.10.

(N) Kidnapping, as defined in Section 207.

(O) Mayhem, as defined in Section 203.

(P) Aggravated mayhem, as defined in Section 205.

(Q) Torture, as defined in Section 206.

(R) Felony extortion, as defined in Sections 518 and 520.

(S) Carjacking, as defined in Section 215.

(T) The sale, delivery, or transfer of a firearm, as defined in Section 12072 until January 1, 2012, and, on or after that date, Article 1 (commencing with Section 27500) of Chapter 4 of Division 6 of Title 4 of Part 6.

(U) Possession of a pistol, revolver, or other firearm capable of being concealed upon the person in violation of paragraph (1) of subdivision (a) of Section 12101 until January 1, 2012, and, on or after that date, Section 29610.

(V) Threats to commit crimes resulting in death or great bodily injury, as defined in Section 422.

(W) Theft and unlawful taking or driving of a vehicle, as defined in Section 10851 of the Vehicle Code.

(X) Prohibited possession of a firearm in violation of Section 12021 until January 1, 2012, and on or after that date, Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.

(Y) Carrying a concealed firearm in violation of Section 12025 until January 1, 2012, and, on or after that date, Section 25400.

(Z) Carrying a loaded firearm in violation of Section 12031 until January 1, 2012, and, on or after that date, Section 25850.

(2) The currently charged offense shall not be used to establish the pattern of criminal gang activity.

(f) As used in this chapter, “criminal street gang” means an ongoing, organized association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in subdivision (e), having a common name or common identifying sign or symbol, and whose members collectively engage in, or have engaged in, a pattern of criminal gang activity.

(g) As used in this chapter, to benefit, promote, further, or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.

(h) Notwithstanding any other law, the court may strike the additional punishment for the enhancements provided in this section or refuse to impose the minimum jail sentence for misdemeanors in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition.

(i) Notwithstanding any other law, for each person committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities for a conviction pursuant to subdivision (a) or (b) of this section, the offense shall be deemed one for which the state shall pay the rate of 100 percent of the per capita institutional cost of the Department of Corrections and Rehabilitation, Division of Juvenile Facilities, pursuant to former Section 912.5 of the Welfare and Institutions Code.

(j) In order to secure a conviction or sustain a juvenile petition, pursuant to subdivision (a) it is not necessary for the prosecution to prove that the person devotes all, or a substantial part, of their time or efforts to the criminal street gang, nor is it necessary to prove that the person is a member of the criminal street gang. Active participation in the criminal street gang is all that is required.

(k) This section shall remain in effect only until January 1, 2023, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2023, deletes or extends that date.

(Amended (as amended by Stats. 2017, Ch. 561, Sec. 178) by Stats. 2021, Ch. 699, Sec. 3. (AB 333) Effective January 1, 2022. Repealed as of January 1, 2023, by its own provisions. See later operative version, as amended by Sec. 4 of Stats. 2021, Ch. 699.)

186.22.

(a) A person who actively participates in a criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.

(b) (1) Except as provided in paragraphs (4) and (5), a person who is convicted of a felony committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which the person has been convicted, be punished as follows:

(A) Except as provided in subparagraphs (B) and (C), the person shall be punished by an additional term of two, three, or four years at the court’s discretion.

(B) If the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years.

(C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years.

(2) If the underlying felony described in paragraph (1) is committed on the grounds of, or within 1,000 feet of, a public or private elementary, vocational, junior high, or high school, during hours in which the facility is open for classes or school-related programs or when minors are using the facility, that fact shall be a circumstance in aggravation of the crime in imposing a term under paragraph (1).

(3) The court shall order the imposition of the middle term of the sentence enhancement, unless there are circumstances in aggravation or mitigation. The court shall state the reasons for its choice of sentencing enhancements on the record at the time of the sentencing.

(4) A person who is convicted of a felony enumerated in this paragraph committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in 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.

(5) Except as provided in paragraph (4), a person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served.

(c) If the court grants probation or suspends the execution of sentence imposed upon the defendant for a violation of subdivision (a), or in cases involving a true finding of the enhancement enumerated in subdivision (b), the court shall require that the defendant serve a minimum of 180 days in a county jail as a condition thereof.

(d) A person who is convicted of a public offense, punishable as a felony or a misdemeanor, that is committed for the benefit of, at the direction of, or in association with, a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members, shall be punished by imprisonment in a county jail not to exceed one year, or by imprisonment in a state prison for one, two, or three years, provided that a person sentenced to imprisonment in the county jail shall be imprisoned for a period not to exceed one year, but not less than 180 days, and shall not be eligible for release upon completion of sentence, parole, or any other basis, until the person has served 180 days. If the court grants probation or suspends the execution of sentence imposed upon the defendant, it shall require as a condition thereof that the defendant serve 180 days in a county jail.

(e) (1) As used in this chapter, “pattern of criminal gang activity” means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of, two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter, and the last of those offenses occurred within three years of the prior offense and within three years of the date the current offense is alleged to have been committed, the offenses were committed on separate occasions or by two or more members, the offenses commonly benefited a criminal street gang, and the common benefit from the offenses is more than reputational:

(A) Assault with a deadly weapon or by means of force likely to produce great bodily injury, as defined in Section 245.

(B) Robbery, as defined in Chapter 4 (commencing with Section 211) of Title 8.

(C) Unlawful homicide or manslaughter, as defined in Chapter 1 (commencing with Section 187) of Title 8.

(D) The sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture a controlled substance as defined in Section 11007 of the Health and Safety Code.

(E) Shooting at an inhabited dwelling or occupied motor vehicle, as defined in Section 246.

(F) Discharging or permitting the discharge of a firearm from a motor vehicle, as defined in subdivisions (a) and (b) of Section 12034 until January 1, 2012, and, on or after that date, subdivisions (a) and (b) of Section 26100.

(G) Arson, as defined in Chapter 1 (commencing with Section 450) of Title 13.

(H) The intimidation of witnesses and victims, as defined in Section 136.1.

(I) Grand theft, as defined in subdivision (a) or (c) of Section 487.

(J) Grand theft of any firearm, vehicle, trailer, or vessel.

(K) Burglary, as defined in Section 459.

(L) Rape, as defined in Section 261.

(M) Money laundering, as defined in Section 186.10.

(N) Kidnapping, as defined in Section 207.

(O) Mayhem, as defined in Section 203.

(P) Aggravated mayhem, as defined in Section 205.

(Q) Torture, as defined in Section 206.

(R) Felony extortion, as defined in Sections 518 and 520.

(S) Carjacking, as defined in Section 215.

(T) The sale, delivery, or transfer of a firearm, as defined in Section 12072 until January 1, 2012, and, on or after that date, Article 1 (commencing with Section 27500) of Chapter 4 of Division 6 of Title 4 of Part 6.

(U) Possession of a pistol, revolver, or other firearm capable of being concealed upon the person in violation of paragraph (1) of subdivision (a) of Section 12101 until January 1, 2012, and, on or after that date, Section 29610.

(V) Threats to commit crimes resulting in death or great bodily injury, as defined in Section 422.

(W) Theft and unlawful taking or driving of a vehicle, as defined in Section 10851 of the Vehicle Code.

(X) Prohibited possession of a firearm in violation of Section 12021 until January 1, 2012, and, on or after that date, Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.

(Y) Carrying a concealed firearm in violation of Section 12025 until January 1, 2012, and, on or after that date, Section 25400.

(Z) Carrying a loaded firearm in violation of Section 12031 until January 1, 2012, and, on or after that date, Section 25850.

(2) The currently charged offense shall not be used to establish the pattern of criminal gang activity.

(f) As used in this chapter, “criminal street gang” means an ongoing, organized association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in subdivision (e), having a common name or common identifying sign or symbol, and whose members collectively engage in, or have engaged in, a pattern of criminal gang activity.

(g) As used in this chapter, to benefit, promote, further, or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.

(h) Notwithstanding any other law, the court may strike the additional punishment for the enhancements provided in this section or refuse to impose the minimum jail sentence for misdemeanors in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition.

(i) Notwithstanding any other law, for each person committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities for a conviction pursuant to subdivision (a) or (b) of this section, the offense shall be deemed one for which the state shall pay the rate of 100 percent of the per capita institutional cost of the Department of Corrections and Rehabilitation, Division of Juvenile Facilities, pursuant to former Section 912.5 of the Welfare and Institutions Code.

(j) In order to secure a conviction or sustain a juvenile petition, pursuant to subdivision (a) it is not necessary for the prosecution to prove that the person devotes all, or a substantial part, of their time or efforts to the criminal street gang, nor is it necessary to prove that the person is a member of the criminal street gang. Active participation in the criminal street gang is all that is required.

(k) This section shall become operative on January 1, 2023.

(Amended (as amended by Stats. 2017, Ch. 561, Sec. 179) by Stats. 2021, Ch. 699, Sec. 4. (AB 333) Effective January 1, 2022. Section operative January 1, 2023, by its own provisions.)

186.22a.

(a) Every building or place used by members of a criminal street gang for the purpose of the commission of the offenses listed in subdivision (e) of Section 186.22 or any offense involving dangerous or deadly weapons, burglary, or rape, and every building or place wherein or upon which that criminal conduct by gang members takes place, is a nuisance which shall be enjoined, abated, and prevented, and for which damages may be recovered, whether it is a public or private nuisance.

(b) Any action for injunction or abatement filed pursuant to subdivision (a), including an action filed by the Attorney General, shall proceed according to the provisions of Article 3 (commencing with Section 11570) of Chapter 10 of Division 10 of the Health and Safety Code, except that all of the following shall apply:

(1) The court shall not assess a civil penalty against any person unless that person knew or should have known of the unlawful acts.

(2) No order of eviction or closure may be entered.

(3) All injunctions issued shall be limited to those necessary to protect the health and safety of the residents or the public or those necessary to prevent further criminal activity.

(4) Suit may not be filed until 30-day notice of the unlawful use or criminal conduct has been provided to the owner by mail, return receipt requested, postage prepaid, to the last known address.

(c) Whenever an injunction is issued pursuant to subdivision (a), or Section 3479 of the Civil Code, to abate gang activity constituting a nuisance, the Attorney General or any district attorney or any prosecuting city attorney may maintain an action for money damages on behalf of the community or neighborhood injured by that nuisance. Any money damages awarded shall be paid by or collected from assets of the criminal street gang or its members. Only members of the criminal street gang who created, maintained, or contributed to the creation or maintenance of the nuisance shall be personally liable for the payment of the damages awarded. In a civil action for damages brought pursuant to this subdivision, the Attorney General, district attorney, or city attorney may use, but is not limited to the use of, the testimony of experts to establish damages suffered by the community or neighborhood injured by the nuisance. The damages recovered pursuant to this subdivision shall be deposited into a separate segregated fund for payment to the governing body of the city or county in whose political subdivision the community or neighborhood is located, and that governing body shall use those assets solely for the benefit of the community or neighborhood that has been injured by the nuisance.

(d) No nonprofit or charitable organization which is conducting its affairs with ordinary care or skill, and no governmental entity, shall be abated pursuant to subdivisions (a) and (b).

(e) Nothing in this chapter shall preclude any aggrieved person from seeking any other remedy provided by law.

(f) (1) Any firearm, ammunition which may be used with the firearm, or any deadly or dangerous weapon which is owned or possessed by a member of a criminal street gang for the purpose of the commission of any of the offenses listed in subdivision (e) of Section 186.22, or the commission of any burglary or rape, may be confiscated by any law enforcement agency or peace officer.

(2) In those cases where a law enforcement agency believes that the return of the firearm, ammunition, or deadly weapon confiscated pursuant to this subdivision, is or will be used in criminal street gang activity or that the return of the item would be likely to result in endangering the safety of others, the law enforcement agency shall initiate a petition in the superior court to determine if the item confiscated should be returned or declared a nuisance.

(3) No firearm, ammunition, or deadly weapon shall be sold or destroyed unless reasonable notice is given to its lawful owner if his or her identity and address can be reasonably ascertained. The law enforcement agency shall inform the lawful owner, at that person’s last known address by registered mail, that he or she has 30 days from the date of receipt of the notice to respond to the court clerk to confirm his or her desire for a hearing and that the failure to respond shall result in a default order forfeiting the confiscated firearm, ammunition, or deadly weapon as a nuisance.

(4) If the person requests a hearing, the court clerk shall set a hearing no later than 30 days from receipt of that request. The court clerk shall notify the person, the law enforcement agency involved, and the district attorney of the date, time, and place of the hearing.

(5) At the hearing, the burden of proof is upon the law enforcement agency or peace officer to show by a preponderance of the evidence that the seized item is or will be used in criminal street gang activity or that return of the item would be likely to result in endangering the safety of others. All returns of firearms shall be subject to Chapter 2 (commencing with Section 33850) of Division 11 of Title 4 of Part 6.

(6) If the person does not request a hearing within 30 days of the notice or the lawful owner cannot be ascertained, the law enforcement agency may file a petition that the confiscated firearm, ammunition, or deadly weapon be declared a nuisance. If the items are declared to be a nuisance, the law enforcement agency shall dispose of the items as provided in Sections 18000 and 18005.

(Amended by Stats. 2010, Ch. 178, Sec. 50. (SB 1115) Effective January 1, 2011. Operative January 1, 2012, by Sec. 107 of Ch. 178.)

Penal Code PC 12022- Personal Use of a Firearm

12022. (a) (1) Except as provided in subdivisions (c) and (d), a person who is armed
with a firearm in the commission of a felony or attempted felony shall be punished
by an additional and consecutive term of imprisonment pursuant to subdivision (h)
of Section 1170 for one year, unless the arming is an element of that offense. This
additional term shall apply to a person who is a principal in the commission of a
felony or attempted felony if one or more of the principals is armed with a firearm,
whether or not the person is personally armed with a firearm.
(2) Except as provided in subdivision (c), and notwithstanding subdivision (d), if
the firearm is an assault weapon, as defined in Section 30510 or 30515, or a
machinegun, as defined in Section 16880, or a .50 BMG rifle, as defined in Section
30530, the additional and consecutive term described in this subdivision shall be three
years imprisonment pursuant to subdivision (h) of Section 1170 whether or not the
arming is an element of the offense of which the person was convicted. The additional
term provided in this paragraph shall apply to any person who is a principal in the
commission of a felony or attempted felony if one or more of the principals is armed
with an assault weapon, machinegun, or a .50 BMG rifle, whether or not the person
is personally armed with an assault weapon, machinegun, or a .50 BMG rifle.
(b) (1) A person who personally uses a deadly or dangerous weapon in the
commission of a felony or attempted felony shall be punished by an additional and
consecutive term of imprisonment in the state prison for one year, unless use of a
deadly or dangerous weapon is an element of that offense.
(2) If the person described in paragraph (1) has been convicted of carjacking or
attempted carjacking, the additional term shall be in the state prison for one, two, or
three years.
(3) When a person is found to have personally used a deadly or dangerous weapon
in the commission of a felony or attempted felony as provided in this subdivision and
the weapon is owned by that person, the court shall order that the weapon be deemed
a nuisance and disposed of in the manner provided in Sections 18000 and 18005.
(c) Notwithstanding the enhancement set forth in subdivision (a), a person who is
personally armed with a firearm in the commission of a violation or attempted violation
of Section 11351, 11351.5, 11352, 11366.5, 11366.6, 11378, 11378.5, 11379, 11379.5,
or 11379.6 of the Health and Safety Code shall be punished by an additional and
consecutive term of imprisonment pursuant to subdivision (h) of Section 1170 for
three, four, or five years.
(d) Notwithstanding the enhancement set forth in subdivision (a), a person who is
not personally armed with a firearm who, knowing that another principal is personallyarmed with a firearm, is a principal in the commission of an offense or attempted
offense specified in subdivision (c), shall be punished by an additional and consecutive
term of imprisonment pursuant to subdivision (h) of Section 1170 for one, two, or
three years.
(e) For purposes of imposing an enhancement under Section 1170.1, the
enhancements under this section shall count as a single enhancement.
(f) Notwithstanding any other provision of law, the court may strike the additional
punishment for the enhancements provided in subdivision (c) or (d) in an unusual
case where the interests of justice would best be served, if the court specifies on the
record and enters into the minutes the circumstances indicating that the interests of
justice would best be served by that disposition.
(Amended by Stats. 2013, Ch. 76, Sec. 166. (AB 383) Effective January 1, 2014.)

Penal Code PC 12202.7- Great Bodily Injury