Current through 2023-2024 Legislative Session Chapters 1-374, 376-386, 393, 394, 397, 398, 406-412, 414, 415, 421, 424, 427, 429, 430, 432-456, 460, 461, 471, 473, 475, 478, 480, 483, 484, 488, 490
Section 16-15-4 - Participation in criminal gang activity prohibited; prosecution(a) It shall be unlawful for any person employed by or associated with a criminal street gang to conduct or participate in criminal gang activity through the commission of any offense enumerated in paragraph (1) of Code Section 16-15-3.(b) It shall be unlawful for any person to commit any offense enumerated in paragraph (1) of Code Section 16-15-3 with the intent to obtain or earn membership or maintain or increase his or her status or position in a criminal street gang.(c) It shall be unlawful for any person to acquire or maintain, directly or indirectly, through criminal gang activity or proceeds derived therefrom any interest in or control of any real or personal property of any nature, including money.(d) It shall be unlawful for any person who occupies a position of organizer, supervisory position, or any other position of management or leadership with regard to a criminal street gang to engage in, directly or indirectly, or conspire to engage in criminal gang activity.(e) It shall be unlawful for any person to directly, or through another acting upon such person's direction, cause, encourage, solicit, recruit, or coerce another to become a member or associate of a criminal street gang, to participate in a criminal street gang, or to conduct or participate in criminal gang activity.(f) It shall be unlawful for any person to communicate, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to deter such person from assisting a member or associate of a criminal street gang to withdraw from such criminal street gang.(g) It shall be unlawful for any person to communicate, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to punish or retaliate against such person for having withdrawn from a criminal street gang.(h) It shall be unlawful for any person to communicate, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to punish or retaliate against such person for refusing to or encouraging another to refuse to become or obtain the status of a member or associate of a criminal street gang.(i) It shall be unlawful for any person to communicate, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to punish or retaliate against such person for providing statements or testimony against criminal street gangs or any criminal street gang member or associate.(j) In addition to the prohibitions set forth in Code Section 16-10-93, it shall be unlawful for any person to communicate, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to intimidate, deter, or prevent such person from communicating to any law enforcement or corrections officer, prosecuting attorney, or judge information relating to criminal street gangs, criminal street gang members or associates, or criminal gang activity.(k)(1) As used in this subsection, the term: (A) "Dangerous weapon" shall have the same meaning as provided for under Code Section 16-11-121.(B) "Firearm" means any handgun, rifle, shotgun, or other weapon which will or can be converted to expel a projectile by the action of an explosive or electrical charge and which is not a dangerous weapon.(C) "Hazardous object" shall have the same meaning as set forth in Code Section 20-2-751.(D) "Leader" means a person who planned and organized others and acted as a guiding force in order to achieve a common goal.(2) Except as otherwise provided in this subsection, any person who violates this Code section shall be guilty of a felony and upon conviction thereof, in addition to any other penalty imposed, shall be sentenced to a mandatory minimum term of imprisonment of five years but not more than 20 years which shall be served consecutively to any other sentence imposed, and no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court.(3)(A) Any person who violates subsection (e) of this Code section and such violation involves another who is under 17 years of age at the time of the violation, or who has a disability as defined in Code Section 34-6A-2, shall be guilty of a felony and upon conviction thereof, in addition to any other penalty imposed, shall be punished as follows:(i) Upon the first conviction thereof, such person shall be sentenced to a mandatory minimum term of imprisonment of ten years but not more than 20 years which shall be served consecutively to any other sentence imposed, and no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court; and(ii) Upon the second or subsequent conviction thereof, such person shall be sentenced to a mandatory minimum term of imprisonment of 15 years but not more than 25 years which shall be served consecutively to any other sentence imposed, and no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court.(B) A mandatory minimum sentence imposed pursuant to this paragraph shall not be reduced, suspended, or otherwise departed from pursuant to paragraph (4) or (5) of this subsection.(4) The district attorney or the Attorney General may move the sentencing court to impose a reduced or suspended sentence upon any person who is convicted of a violation of this Code section who provides substantial assistance in the identification, arrest, or conviction of any of his or her accomplices, accessories, coconspirators, leaders, or principals. Upon good cause shown, the motion may be filed and heard in camera. The judge hearing the motion may impose a reduced or suspended sentence if he or she finds that the defendant has rendered such substantial assistance.(5)(A) In the court's discretion, a judge may depart from the mandatory minimum sentence specified for a person who is convicted of a violation of this Code section as set forth in paragraph (2) of this subsection if the judge concludes that: (i) The defendant was not a leader of the criminal conduct;(ii) The defendant did not possess or use a firearm, dangerous weapon, or hazardous object during the crime;(iii) The criminal conduct did not result in death or serious bodily injury to a person other than to a person who was a party to the crime;(iv) The defendant has no prior felony conviction; and(v) The interests of justice will not be served by the imposition of the prescribed mandatory minimum sentence.(B) If a judge departs from the mandatory minimum sentence pursuant to this paragraph, the judge shall specify on the record the circumstances for the reduction and the interests served by such departure. Any such order shall be appealable by the State of Georgia pursuant to Code Section 5-7-1.(l) In addition to any other penalty provided by this Code section, all sentences imposed under this Code section shall require as a special condition of the sentence that the person sentenced shall not knowingly have contact of any kind or character with any other member or associate of a criminal street gang, shall not participate in any criminal gang activity, and, in cases involving a victim, shall not knowingly have contact of any kind or character with any such victim or any member of any such victim's family or household.(m) Any crime committed in violation of this Code section shall be considered a separate offense.(n) Prosecuting attorneys and the Attorney General shall have concurrent authority to prosecute any criminal cases arising under the provisions of this Code section and to perform any duty that necessarily appertains thereto. For purposes of investigating offenses or criminal cases arising under the provisions of this Code section, the Attorney General shall have the authority to employ peace officers who shall be authorized to execute all powers of a peace officer.Amended by 2023 Ga. Laws 29,§ 2, eff. 7/1/2023, app. to all offenses committed on or after 7/1/2023.Amended by 2022 Ga. Laws 645,§ 1, eff. 7/1/2022.Amended by 2016 Ga. Laws 606,§ 4, eff. 5/3/2016.Amended by 2011 Ga. Laws 245,§ 16, eff. 5/13/2011.Amended by 2010 Ga. Laws 406,§ 3, eff. 7/1/2010.Amended by 2006 Ga. Laws 616,§ 2, eff. 7/1/2006.