The Gang Enhancement Can Apply to Even Non-Gang Members
In an effort to stymie the increase in gang related crimes the Utah Legislature added an additional penalty known as the “gang enhancement” – which increases any charge by one full degree – to crimes committed by gang members…or at least that was the intention.
In reality, the statute as written is extremely broad and does not actually limit the gang enhancement to gang members. Instead, a crime committed “in concert with two or more persons” is all that is needed. And what does that mean? It requires only that an individual be “aided or encouraged by at least two other persons in committing the offense and was aware of this aid and encouragement” and that the other people were either “physically present” or “participated” in the crime. See Utah Code 76-3-203.1.
The statute, therefore, extends far beyond the “criminal street gangs” it was supposedly attempting to punish and instead reaches any group of three or more persons who commit any number of listed crimes.
What are the crimes that are subject to gang enhancement?
Anyone who commits the following crimes with the aid or encouragement of two or more other persons can have his charges increased by a full degree:
- Drug production, distribution, or possession;
- Possession of drug paraphernalia;
- Criminal homicide;
- Felony sexual offenses;
- Child pornography;
- Property destruction;
- Criminal trespass;
- Obstructing government operations;
- Witness tampering;
- Extortion or bribery to dismiss criminal proceedings;
- Explosives offenses;
- Weapons offenses;
- Pornographic and harmful materials and performances;
- Bus passenger safety violations;
- Pattern of unlawful activity;
- Communications fraud;
- Money laundering; and,
- Burglary of a research facility.
If the gang enhancement applies to any of these crimes a second degree felony becomes a first degree felony, a third degree felony becomes a second degree felony, and so on.
The “Criminal Street Gang”
Given the broad nature of the gang enhancement penalty it’s a wonder the Legislature even needed to specifically target the “criminal street gang” which is what we typically think about when we think about gangs. Nonetheless, the Legislature sets forth a long definition of what constitutes a “criminal street gang” in Utah Code 76-9-802. If by some miracle the gang enhancement does not apply to a person under the three or more persons standard but it would under the “criminal street gang” definition then apparently that is why it was included.