BILL NUMBER: SB 282 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Wright
FEBRUARY 24, 2009
An act to amend Section 186.22a of the Penal Code, relating to
gangs.
LEGISLATIVE COUNSEL'S DIGEST
SB 282, as introduced, Wright. Criminal street gangs: injunction:
duration.
Existing law provides for injunctive relief from the unlawful
activities of criminal street gangs. Existing law provides that an
injunction issued against a person prohibiting harassment, as
specified, shall have a duration of not more than 3 years, and that
at any time within the 3 months before the expiration of the
injunction, the plaintiff may apply for a renewal of the injunction
by filing a new petition for an injunction for harassment.
This bill would provide that an injunction issued against an
individual who is a criminal street gang member shall have a duration
of not more than 5 years, and that at any time within 3 months
before the expiration of the injunction, the plaintiff may apply for
a renewal of the injunction by filing a new petition for an
injunction against the criminal street gang member. The bill would
further provide that if an individual subject to an injunction
violates that injunction, an ex parte application may be made for,
and the court, after a noticed hearing, may issue, an order for an
extension of the injunction for an additional 5 years, if the court
determines that that action would be in the interest of justice and
equity, as specified.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 186.22a of the Penal Code is amended to read:
186.22a. (a) Every building or place used by members of a
criminal street gang for the purpose of the commission of the
offenses listed in subdivision (e) of Section 186.22 or any offense
involving dangerous or deadly weapons, burglary, or rape, and every
building or place wherein or upon which that criminal conduct by gang
members takes place, is a nuisance which shall be enjoined, abated,
and prevented, and for which damages may be recovered, whether it is
a public or private nuisance.
(b) Any action for injunction or abatement filed pursuant to
subdivision (a), including an action filed by the Attorney General,
shall proceed according to the provisions of Article 3 (commencing
with Section 11570) of Chapter 10 of Division 10 of the Health and
Safety Code, except that all of the following shall apply:
(1) The court shall not assess a civil penalty against any person
unless that person knew or should have known of the unlawful acts.
(2) No order of eviction or closure may be entered.
(3) All injunctions issued shall be limited to those necessary to
protect the health and safety of the residents or the public or those
necessary to prevent further criminal activity.
(4) Suit may not be filed until 30-day notice of the unlawful use
or criminal conduct has been provided to the owner by mail, return
receipt requested, postage prepaid, to the last known address.
(5) An injunction issued pursuant to this section against an
individual who is a criminal street gang member shall have a duration
of not more than five years.
(6) At any time within three months before the expiration of the
injunction, the Attorney General or any district attorney or any
prosecuting city attorney may apply for a renewal of the injunction
by filing a new petition for an injunction under this section.
(7) If an individual subject to an injunction under this section
violates that injunction, the Attorney General or any district
attorney or any prosecuting city attorney, may make an ex parte
application for, and the court, after a noticed hearing, may issue an
order for, an extension of the injunction for an additional five
years, if the court determines that that action would be in the
interest of justice and equity for all parties, taking into account
the effect on the parties of extending of the original injunction,
and any other pertinent factor.
(c) Whenever an injunction is issued pursuant to subdivision (a),
or Section 3479 of the Civil Code, to abate gang activity
constituting a nuisance, the Attorney General or any district
attorney or any prosecuting city attorney may maintain an action for
money monetary damages on behalf of the
community or neighborhood injured by that nuisance. Any
money monetary damages awarded shall be paid by
or collected from assets of the criminal street gang or its members.
Only members of the criminal street gang who created, maintained, or
contributed to the creation or maintenance of the nuisance shall be
personally liable for the payment of the damages awarded. In a civil
action for damages brought pursuant to this subdivision, the Attorney
General, district attorney, or city attorney may use, but is not
limited to the use of, the testimony of experts to establish damages
suffered by the community or neighborhood injured by the nuisance.
The damages recovered pursuant to this subdivision shall be deposited
into a separate segregated fund for payment to the governing body of
the city or county in whose political subdivision the community or
neighborhood is located, and that governing body shall use those
assets solely for the benefit of the community or neighborhood that
has been injured by the nuisance.
(d) No nonprofit or charitable organization which is conducting
its affairs with ordinary care or skill, and no governmental entity,
shall be abated pursuant to subdivisions (a) and (b).
(e) Nothing in this chapter shall preclude any aggrieved person
from seeking any other remedy provided by law.
(f) (1) Any firearm, ammunition which may be used with the
firearm, or any deadly or dangerous weapon which is owned or
possessed by a member of a criminal street gang for the purpose of
the commission of any of the offenses listed in subdivision (e) of
Section 186.22, or the commission of any burglary or rape, may be
confiscated by any law enforcement agency or peace officer.
(2) In those cases where a law enforcement agency believes that
the return of the firearm, ammunition, or deadly weapon confiscated
pursuant to this subdivision, is or will be used in criminal street
gang activity or that the return of the item would be likely to
result in endangering the safety of others, the law enforcement
agency shall initiate a petition in the superior court to determine
if the item confiscated should be returned or declared a nuisance.
(3) No firearm, ammunition, or deadly weapon shall be sold or
destroyed unless reasonable notice is given to its lawful owner if
his or her identity and address can be reasonably ascertained. The
law enforcement agency shall inform the lawful owner, at that person'
s last known address by registered mail, that he or she has 30 days
from the date of receipt of the notice to respond to the court clerk
to confirm his or her desire for a hearing and that the failure to
respond shall result in a default order forfeiting the confiscated
firearm, ammunition, or deadly weapon as a nuisance.
(4) If the person requests a hearing, the court clerk shall set a
hearing no later than 30 days from receipt of that request. The court
clerk shall notify the person, the law enforcement agency involved,
and the district attorney of the date, time, and place of the
hearing.
(5) At the hearing, the burden of proof is upon the law
enforcement agency or peace officer to show by a preponderance of the
evidence that the seized item is or will be used in criminal street
gang activity or that return of the item would be likely to result in
endangering the safety of others. All returns of firearms shall be
subject to Section 12021.3.
(6) If the person does not request a hearing within 30 days of the
notice or the lawful owner cannot be ascertained, the law
enforcement agency may file a petition that the confiscated firearm,
ammunition, or deadly weapon be declared a nuisance. If the items are
declared to be a nuisance, the law enforcement agency shall dispose
of the items as provided in Section 12028.