Additional penalty: Felony committed to promote activities of criminal gang; restriction on probation; expert testimony.
Except as otherwise provided in subsection 5 and NRS 193.169, any person who is convicted of a felony committed knowingly for the benefit of, at the direction of, or in affiliation with, a criminal gang, with the specific intent to promote, further or assist the activities of the criminal gang, shall, in addition to the term of imprisonment prescribed by statute for the crime, be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 20 years. In determining the length of the additional penalty imposed, the court shall consider the following information:
The facts and circumstances of the crime;
The criminal history of the person;
The impact of the crime on any victim;
Any mitigating factors presented by the person; and
Any other relevant information.Ê The court shall state on the record that it has considered the information described in paragraphs (a) to (e), inclusive, in determining the length of the additional penalty imposed.
The sentence prescribed by this section:
Must not exceed the sentence imposed for the crime; and
Runs consecutively with the sentence prescribed by statute for the crime.
This section does not create any separate offense but provides an additional penalty for the primary offense, whose imposition is contingent upon the finding of the prescribed fact.
The court shall not impose an additional penalty pursuant to this section unless:
The indictment or information charging the defendant with the primary offense alleges that the primary offense was committed knowingly for the benefit of, at the direction of, or in affiliation with, a criminal gang, with the specific intent to promote, further or assist the activities of the criminal gang; and
The trier of fact finds that allegation to be true beyond a reasonable doubt.
The court shall not impose an additional penalty pursuant to this section if the primary offense is a violation of NRS 201.570.
Except as otherwise provided in this subsection, the court shall not grant probation to or suspend the sentence of any person convicted of a felony committed for the benefit of, at the direction of, or in affiliation with, a criminal gang if an additional term of imprisonment may be imposed for that primary offense pursuant to this section. The court may, upon the receipt of an appropriate motion, reduce or suspend the sentence imposed for the primary offense if it finds that the defendant rendered substantial assistance in the arrest or conviction of any other principals, accomplices, accessories or coconspirators to the crime, or of any other persons involved in the commission of a felony which was committed for the benefit of, at the direction of, or in affiliation with, a criminal gang. The agency which arrested the defendant must be given an opportunity to support or oppose such a motion before it is granted or denied. If good cause is shown, the motion may be heard in camera.
In any proceeding to determine whether an additional penalty may be imposed pursuant to this section, expert testimony is admissible to show particular conduct, status and customs indicative of criminal gangs, including, but not limited to:
Characteristics of persons who are members of criminal gangs;
Specific rivalries between criminal gangs;
Common practices and operations of criminal gangs and the members of those gangs;
Social customs and behavior of members of criminal gangs;
Terminology used by members of criminal gangs;
Codes of conduct, including criminal conduct, of particular criminal gangs; and
The types of crimes that are likely to be committed by a particular criminal gang or by criminal gangs in general.
As used in this section, “criminal gang” means any combination of persons, organized formally or informally, so constructed that the organization will continue its operation even if individual members enter or leave the organization, which:
Has a common name or identifying symbol;
Has particular conduct, status and customs indicative of it; and
Has as one of its common activities engaging in criminal activity punishable as a felony, other than the conduct which constitutes the primary offense.