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2023 SESSION
Be it enacted by the General Assembly of Virginia:
1. That §§ 18.2-46.1, 18.2-46.2, 18.2-46.3:1, and 18.2-46.3:3 of the Code of Virginia are amended and reenacted as follows:
§ 18.2-46.1. Definitions.
As used in this article unless the context requires otherwise or it is otherwise provided:
"Act of violence" means those felony offenses described in subsection C of § 17.1-805 or subsection A of § 19.2-297.1.
"Criminal street gang" means any ongoing organization, association, or group of three or more persons, whether formal or informal, (i) which has as one of its primary objectives or activities the commission of one or more criminal activities; (ii) which has an identifiable name or identifying sign or symbol; and (iii) whose members individually or collectively have engaged in the commission of, attempt to commit, conspiracy to commit, or solicitation of two or more predicate criminal acts, at least one of which is an act of violence, provided such acts were not part of a common act or transaction.
"Predicate criminal act" means (i) an act of
violence; (ii) any violation of § 18.2-31, 18.2-42, 18.2-46.3,
18.2-51, 18.2-51.1, 18.2-51.2, 18.2-51.3, 18.2-51.6, 18.2-52, 18.2-52.1,
18.2-53, 18.2-53.1, 18.2-55, 18.2-56.1, 18.2-57, 18.2-57.2, 18.2-59,
18.2-83, 18.2-89, 18.2-90, 18.2-95, 18.2-108.1, 18.2-121, 18.2-127,
18.2-128, 18.2-137, 18.2-138, 18.2-146, 18.2-147, 18.2-248.01, 18.2-248.03,
18.2-255, 18.2-255.2, 18.2-279, 18.2-282.1, 18.2-286.1, 18.2-287.4,
18.2-289, 18.2-300, 18.2-308.1, 18.2-308.2, 18.2-308.2:01, 18.2-308.4,
18.2-355, 18.2-356, 18.2-357, or 18.2-357.1; (iii) a felony violation of §
18.2-60.3, 18.2-346.01, 18.2-348, or 18.2-349; (iv) a felony violation of §
4.1-1101, 18.2-248, or 18.2-248.1 or a conspiracy to commit a felony violation
of § 4.1-1101, 18.2-248, or 18.2-248.1; (v) any violation of a local ordinance
adopted pursuant to § 15.2-1812.2; or (vi) any substantially similar offense
under the laws of another state or territory of the United States, the District
of Columbia, or the United States.
§ 18.2-46.2. Prohibited criminal street gang participation; penalty.
A. Any person who actively participates in or is a member of a
criminal street gang and who knowingly and willfully participates in any
predicate criminal act committed for the benefit of, at the direction of, or in
association with any criminal street gang shall be is guilty of a
Class 5 4 felony. However, (i) if such participant in or
member of a criminal street gang is age eighteen 18 years of
age or older and knows or has reason to know that such criminal street gang
also includes a juvenile member or participant or (ii) if such predicate
criminal act is an act of violence as defined in § 18.2-46.1, he shall
be is guilty of a Class 4 3 felony.
B. Violation of this section shall constitute a separate and distinct offense. If the acts or activities violating this section also violate another provision of law, a prosecution under this section shall not prohibit or bar any prosecution or proceeding under such other provision or the imposition of any penalties provided for thereby.
§ 18.2-46.3:1. Third or subsequent conviction of criminal street gang crimes.
Upon a felony conviction of § 18.2-46.2 or § 18.2-46.3,
where it is alleged in the warrant, information or indictment on which a person
is convicted that (i) such person has been previously convicted twice under any
combination of § 18.2-46.2 or § 18.2-46.3, within 10 years of the third
or subsequent offense, and (ii) each such offense occurred on different dates,
such person is guilty of a Class 3 2 felony.
§ 18.2-46.3:3. Enhanced punishment for gang activity taking place in a gang-free zone; penalties.
Any person who violates § 18.2-46.2 (i) upon the property,
including buildings and grounds, of any public or private elementary,
secondary, or postsecondary school or institution of higher education; (ii)
upon public property or any property open to public use within 1,000 feet of
such school property; (iii) on any school bus as defined in § 46.2-100; or (iv)
upon the property, including buildings and grounds, of any publicly owned or
operated community center or any publicly owned or operated recreation center
is guilty of a felony punishable as specified in § 18.2-46.2, and shall be
sentenced to a mandatory minimum term of imprisonment of two years to be served
consecutively with any other sentence. A person who violates subsection A of §
18.2-46.3 upon any property listed in this section is guilty of a Class 6
5 felony, except that any person 18 years of age or older who violates
subsection A of § 18.2-46.3 upon any property listed in this section, when such
offense is committed against a juvenile, is guilty of a Class 5 4
felony. Any person who violates subsection B of § 18.2-46.3 upon any property
listed in this section is guilty of a Class 5 4 felony. It is a
violation of this section if the person violated § 18.2-46.2 or 18.2-46.3 on
the property described in clauses (i) through (iii) regardless of where the
person intended to commit such violation.
2. That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is at least $437,679 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice.