BILL ANALYSIS
AB 1211
Page 1
Date of Hearing: April 21, 2009
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 1211 (Torrico) - As Amended: April 13, 2009
SUMMARY : Creates a misdemeanor, punishable by up to one year
in the county jail; by fine of not more than $2,500; or by
imprisonment and fine for any person who omits the performance
of any duty which causes any person under the age of 18 years of
age to become an active participant in a criminal street gang,
as specified. Specifically, this bill :
1)States for purposes of this misdemeanor, a parent or legal
guardian to any person under the age of 18 years of age shall
have the duty to exercise reasonable care, supervision,
protection, and control over their minor child.
2)Provides that existing parental diversion programs, as
specified, shall apply.
EXISTING LAW :
1)Provides that any person who solicits or recruits another to
actively participate in a criminal street gang, as defined in
existing law, with the intent that the person solicited or
recruited participate in a pattern of criminal street gang
activity, or with the intent that the person solicited or
recruited promote, further, or assist in any felonious conduct
by members of the criminal street gang, shall be punished by
imprisonment in the state prison for 16 months, or two or
three years. [Penal Code Section 186.26(a).]
2)States any person who threatens another person with physical
violence on two or more separate occasions within any 30-day
period with the intent to coerce, induce, or solicit any
person to actively participate in a criminal street gang, as
defined, shall be punished by imprisonment in the state prison
for two, three, or four years. [Penal Code Section
186.26(b).]
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3)States any person who uses physical violence to coerce,
induce, or solicit another person to actively participate in
any criminal street gang, as defined, or to prevent the person
from leaving a criminal street gang, shall be punished by
imprisonment in the state prison for three, four, or five
years. [Penal Code Section 186.26(c).]
4)States if the person solicited, recruited, coerced, or
threatened, as specified, and is a minor, an additional term
of three years shall be imposed in addition and consecutive to
the penalty for soliciting or recruiting another to actively
participate in a criminal street gang. [Penal Code Section
186.26(d).]
5)Punishes any person who commits any act or omits the
performance of any duty, which act or omission causes or tends
to cause or encourage any person under the age of 18 years to
commit specified crimes or which act or omission contributes
thereto, or any person who, by any act or omission, or by
threats, commands, or persuasion, induces or endeavors to
induce any person under the age of 18 years or any ward or
dependent child of the juvenile court to fail or refuse to
conform to a lawful order of the juvenile court, or to do or
to perform any act or to follow any course of conduct or to so
live as would cause or manifestly tend to cause that person to
become or to remain a person within the provisions of law, as
specified, is guilty of a misdemeanor and upon conviction
thereof shall be punished by a fine not exceeding $2,500; by
imprisonment in the county jail for not more than one year; or
by both fine and imprisonment in a county jail, or may be
released on probation for a period not exceeding five years.
[Penal Code Section 272(a)(1).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "There is a lack
of an educated workforce in this state. We need to create
opportunities for our youth to grow and become effective
members of our society. According to the Director of the
Governor's Office of Gang and Youth Violence Policy, more than
15,000 lives in 30 years have been lost to gang violence. In
a short amount of time, our state will be spending more money
on prisons than educating for our children. California is
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suffering from the impact of gang and youth violence. In
California gang membership estimates range from 250,000 to
420,000 members (SafeState.org). At an increasing number, more
and more young people are gravitating toward gang life. This
imposes a problem to the community by having to cope with the
crime and violence attached with that of being a gang member.
Murder, drive-by shootings, theft and drug trafficking have
been occurring at increasing rates, all which are criminal
activities correlated with living the gang life. Ultimately
the safety and protection of everyday citizens Is not
adequate. Social activities, community involvement, and job
training programs are needed to encourage young adults to take
the time to evaluate their options instead of ending up behind
bars. The purpose of this bill is to cut down on gang
violence and save the lives of children and young adults.
2)Existing Penalties for Recruiting or Soliciting a Minor to
Participate in a Criminal Street Gang : Under existing law,
any person who solicits or recruits another to actively
participate in a criminal street gang with the intent that the
person solicited engage in a pattern of criminal street gang
activity or with the intent that a person solicited promote in
any felonious conduct by a member of a criminal street gang
shall be sentenced to state prison for a term of 16 months, 2
or 3 years. [Penal Code Section 186.26(a).] A "pattern of
criminal gang activity" is defined as the commission,
attempted commission or conspiracy to commit two or more
offenses listed in statute. Such offenses include assault,
robbery, murder, possession or sale of drugs, arson, burglary,
and extortion. Any person who recruits a minor to participate
in a criminal street gang shall be sentenced to an additional
three years. [Penal Code Section 186.26(e)]. Arguably, this
is a challenging burden of proof for the People in that the
prosecutor must prove solicitation and the intent that the
person being recruited commits two or more of the specified
crimes in the definition of "criminal gang activity". This
statute, originally added to the Penal Code by the Street
Terrorism Enforcement and Prevention Act of 1988, was not
intended to apply to persons who negligently acts, even
criminally, or fails to act, in circumstances that may
contribute to a minor participating in a criminal street gang.
3)Contributing to the Delinquency of a Minor : The language of
this bill is patterned on current law criminalizing the act of
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contributing to the delinquency of a minor. Existing law
states that any person who acts or omits the performance of a
duty that causes or tends to cause a person under the age of
18 to come under the jurisdiction of juvenile court or commit
a crime that would bring the minor into the jurisdiction of
the juvenile court, he or she may be charged with a
misdemeanor and sentenced to up to one year in the county
jail. [Penal Code Section 272(a).] Hence, if the conduct of
the parent or legal guardian contributes to or causes a minor
to commit a crime, that parent or legal guardian is guilty of
a misdemeanor.
4)Legislative Intent : The Legislature amended Penal Code
Section 272 in 1988, adding the very sentence used in this
proposed statute. The appended sentenced required, "For
purposes of this subdivision, a parent or legal guardian to
any person under the age of 18 years shall have the duty to
exercise reasonable care, supervision, protection, and control
over their minor child." [Penal Code Section 272(a)(2).] In
response to challenges of vagueness and over breadth, the
California Supreme Court ruled against the plaintiffs finding
the legislative intent of the amendment provided sufficient
guidance. The court reasoned,
"We therefore turn to the statutory context as a sign of
legislative purpose. The Legislature enacted the amendment
and the related parental diversion program as part of the
Street Terrorism Enforcement and Prevention Act, the premise
of which was that 'the State of California is in a state of
crisis which has been caused by violent street gangs whose
members threaten, terrorize, and commit a multitude of crimes
against the peaceful citizens of their neighborhoods.'
(Statutes of 1988, Chapter 1256, Section 1, p. 4179.) The act
included measures establishing criminal penalties for gang
participation and allowing sentence enhancements for
gang-related conduct; defining certain buildings in which gang
activities take place as nuisances subject to injunction,
abatement, or damages; and prohibiting terrorist threats of
death or great bodily injury. Viewed in the context of the
act, i.e., as part of its broad scheme to alleviate the
problems caused by street gangs, the amendment to section 272
and the parental diversion program appear intended to enlist
parents as active participants in the effort to eradicate such
gangs." [Williams vs. Garcetti (1993) 5 Cal.4th 561, 569.]
It seems clear the Legislature intended this provision to
assist prosecuting agencies in compelling parental action to
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keep their children out of gang activity.
5)Arguments in Opposition : According to the California Public
Defenders Association , "Instead of looking at the complex
issue of gangs from a public health perspective, where gang
affiliation and activity is a disease that must be
collectively addressed by schools, community leaders, and all
sectors of government with a focus on prevention and early
intervention, AB 1211would seek to demonize extremely well
intentioned parents and caretakers. AB 1211 may purport to
address those few cases where a parent who is a gang member
actively recruits their child to join a gang. Such
affirmative activity is already proscribed by existing law.
The reality is that AB 1211 would cast a wide net that would
disproportionately impact working class and poor. Assuming
that they are not part of the growing ranks of the unemployed,
single parents who must work full-time and often over-time to
pay the rent and put food on the table are especially at risk
of being targeted by AB 1211. Often, though hardworking and
well-intentioned, the parent is unable to access positive
after school or other community programs which are rarely
offered and being cut now to close the budget deficit. Under
AB 1211, the teacher of the student who joins a gang could be
subject to prosecution for contributing to the delinquency of
a minor as well. AB 1211 would force a single working parent
to lose their job, despite the fact that employment was the
reason that the parent could not watch and control their
teenage child's movement at all hours. Only the uber wealthy
who could pay for a nanny to chart and somehow control every
movement of their child would be protected from prosecution
for contributing to the delinquency of a minor. On top of the
fines, a conviction for supposedly contributing to the
delinquency of a minor would send a parent or guardian to jail
for up to a year and would cause the child to enter the
dependency system and become a drain to taxpayers.
Undoubtedly, the parent or guardian would lose their source of
income and not be able to access employment in the near future
with a conviction. AB 1211 would place working class and
indigent families at risk for homelessness."
6)Prior Legislation : AB 1033 (Caballero), of the 2007-2008
Legislative Session, would have stated every person who
commits any act or omits the performance of any duty or
contributes to act or omission that causes or tends to cause
or encourage any person under the age of 18 to become a member
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of a criminal street gang, or by threats, commands or
persuades any person to become a member of a criminal street
gang, is guilty of a misdemeanor. AB 1033 died on the
Assembly Inactive File.
REGISTERED SUPPORT / OPPOSITION :
Support
None
Opposition
California Attorneys for Criminal Justice
California Public Defenders Association
Taxpayers for Improving Public Safety
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744