Offenses committed in concert with three or more persons or in relation to a criminal street gang -- Notice -- Enhanced penalties.
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(1) As used in this section:
(a) "Criminal street gang" means the same as that term is defined in Section 76-9-802.
(b) "In concert with three or more persons" means:
(i) the defendant was aided or encouraged by at least three other persons in committing the offense and was aware of this aid or encouragement; and
(ii) each of the other persons:
(A) was physically present; and
(B) participated as a party to any offense listed in Subsection (4), (5), or (6).
(c) "In concert with three or more persons" means, regarding intent:
(i) other persons participating as parties need not have the intent to engage in the same offense or degree of offense as the defendant; and
(ii) a minor is a party if the minor's actions would cause the minor to be a party if the minor were an adult.
(2) A person who commits any offense in accordance with this section is subject to an enhanced penalty as provided in Subsection (4), (5), or (6) if the trier of fact finds beyond a reasonable doubt that the person acted:
(a) in concert with three or more persons;
(b) for the benefit of, at the direction of, or in association with any criminal street gang as defined in Section 76-9-802; or
(c) to gain recognition, acceptance, membership, or increased status with a criminal street gang as defined in Section 76-9-802.
(3) The prosecuting attorney, or grand jury if an indictment is returned, shall cause to be subscribed upon the information or indictment notice that the defendant is subject to the enhanced penalties provided under this section.
(4)
(a) For an offense listed in Subsection (4)(b), a person may be charged as follows:
(i) for a class B misdemeanor, as a class A misdemeanor; and
(ii) for a class A misdemeanor, as a third degree felony.
(b) The following offenses are subject to Subsection (4)(a):
(i) criminal mischief as defined in Section 76-6-106; and
(ii) graffiti as defined in Section 76-6-107.
(5)
(a) For an offense listed in Subsection (5)(b), a person may be charged as follows:
(i) for a class B misdemeanor, as a class A misdemeanor;
(ii) for a class A misdemeanor, as a third degree felony; and
(iii) for a third degree felony, as a second degree felony.
(b) The following offenses are subject to Subsection (5)(a):
(i) burglary, if committed in a dwelling as defined in Subsection 76-6-202(2);
(ii) any offense of obstructing government operations under Title 76, Chapter 8, Part 3, Obstructing Governmental Operations, except Sections 76-8-302, 76-8-303, 76-8-307, 76-8-308, and 76-8-312;
(iii) tampering with a witness or other violation of Section 76-8-508;
(iv) retaliation against a witness, victim, informant, or other violation of Section 76-8-508.3;
(v) extortion or bribery to dismiss a criminal proceeding as defined in Section 76-8-509;
(vi) any weapons offense under Title 76, Chapter 10, Part 5, Weapons; and
(vii) any violation of Title 76, Chapter 10, Part 16, Pattern of Unlawful Activity Act.
(6)
(a) For an offense listed in Subsection (6)(b), a person may be charged as follows:
(i) for a class B misdemeanor, as a class A misdemeanor;
(ii) for a class A misdemeanor, as a third degree felony;
(iii) for a third degree felony, as a second degree felony; and
(iv) for a second degree felony, as a first degree felony.
(b) The following offenses are subject to Subsection (6)(a):
(i) assault and related offenses under Title 76, Chapter 5, Part 1, Assault and Related Offenses;
(ii) any criminal homicide offense under Title 76, Chapter 5, Part 2, Criminal Homicide;
(iii) kidnapping and related offenses under Title 76, Chapter 5, Part 3, Kidnapping, Trafficking, and Smuggling;
(iv) any felony sexual offense under Title 76, Chapter 5, Part 4, Sexual Offenses;
(v) sexual exploitation of a minor as defined in Section 76-5b-201;
(vi) robbery and aggravated robbery under Title 76, Chapter 6, Part 3, Robbery; and
(vii) aggravated exploitation of prostitution under Section 76-10-1306.
(7) The sentence imposed under Subsection (4), (5), or (6) may be suspended and the individual placed on probation for the higher level of offense.
(8) It is not a bar to imposing the enhanced penalties under this section that the persons with whom the actor is alleged to have acted in concert are not identified, apprehended, charged, or convicted, or that any of those persons are charged with or convicted of a different or lesser offense.