BILL NUMBER: SB 282 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 24, 2009
AMENDED IN SENATE MAY 5, 2009
AMENDED IN SENATE APRIL 13, 2009
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 amended, Wright. Criminal street gangs: injunction:
duration. petition to terminate.
Existing law provides for injunctive relief from the unlawful
activities of criminal street gangs, the duration of which is within
the court's discretion. Existing law provides for injunctive relief
from a person who engages in harassment, as specified, of a duration
of not more than 3 years, and provides that, at any time within the 3
months before the expiration of the injunction prohibiting
harassment, the plaintiff may apply for a renewal of that injunction
by filing a new petition.
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.It would further provide that at any time
within 3 months before the expiration of one of these injunctions or
an injunction that enjoins street gang activity as a nuisance, as
specified, the Attorney General or any district attorney or
prosecuting city attorney may apply for a renewal of the injunction
by filing a certification that a court has determined that an
individual subject to the injunction has violated the injunction or
has been convicted of a new felony or misdemeanor. This bill would
authorize the court, after a noticed hearing, to issue an order for
an extension of the injunction against that individual for an
additional 5 years. The
This bill would provide that, in addition to any other
administrative or judicial remedies, in an action relat
ing to an injunction issued against an individual who is a criminal
street gang member, the individual may file a specified petition with
the court to terminate the criminal street gang injunction against
the individual. The bill would require the petition to be filed under
penalty of perjury and to certify that the individual has not
violated the injunction or been convicted of committing a new felony
or misdemeanor and that not less than 5 years have elapsed between
the application of the injunction to the individual and the filing of
the petition for termination. By expanding the scope of the crime of
perjury, the bill would impose a state-mandated local program. The
bill would require the court to grant the petition under specified
circumstances. The bill would require the Judicial
Council, by September 1, 2010, to develop, approve, and adopt forms
and notices relating to the petition for termination of a criminal
street gang injunction against an individual, as specified. The
bill would express legislative findings, declarations, and intent
regarding the enactment of its provisions.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. (a) The Legislature finds and declares the following:
(1) Under federal law applicable to the California gang database
(28 C.F.R. 23.20(h)), there is a five-year limit on the retention of
names in the system.
(2) Under state law relating to the registration of gang offenders
(subd. (c), Sec. 186.32, Pen. C.), there is a five-year limit on the
application of registration requirements on gang offenders.
(3) Existing law does not provide a time limit on the duration of
gang injunctions as applied to an individual.
(b) It is the intent of the Legislature in enacting this bill to
provide a time limit on the duration of gang injunctions as applied
to an individual that is consistent with related state and federal
law involving gangs.
SEC. 2. 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) (A) 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.
(B) At any time within three months before the expiration of an
injunction issued pursuant to this section, or Section 3479 or 3480
of the Civil Code enjoining criminal street gang activity as a
nuisance, against an individual, the Attorney General or any district
attorney or prosecuting city attorney may apply for a renewal of the
injunction by filing a certification that a court has determined
that an individual subject to injunction under this section has
violated that injunction or has been convicted of a new felony or
misdemeanor. The court, after a noticed hearing, may issue an order
for an extension of the injunction against that individual for an
additional five years.
(5) (A) In addition to any other applicable administrative or
judicial remedies, in any action relating to an individual subject to
an injunction issued pursuant to this section or issued pursuant to
Section 3479 or 3480 of the Civil Code enjoining criminal street gang
activity as a nuisance, the individual may petition the court to
terminate the gang injunction against the individual pursuant to
these provisions.
(B) The defendant shall file the original petition to terminate an
injunction with the court that issued the injunction and shall serve
a copy of the petition on the agency that prosecuted the case.
(C) The individual shall in the petition certify, under penalty of
perjury, the following:
(i) The individual has not violated the subject injunction.
(ii) The individual has not been convicted of committing a new
felony or misdemeanor.
(iii) Not less than five years have elapsed between the
application of the injunction to the individual and the filing of
this petition.
(D) If any of the information required in subparagraph (C) is
missing from the petition, or if proof of service on the prosecuting
agency is not provided, the court shall return the petition to the
individual and advise him or her that the matter cannot be considered
without the missing information.
(E) A reply to the petition, if any, shall be filed with the court
within 60 days of the date on which the prosecuting agency is served
with the motion, unless a continuance is granted for good cause.
(F) If the court finds by a preponderance of the evidence that the
statements in the petition are true, or if no reply to the petition
is filed, the court shall grant the petition to terminate the
injunction as regards the individual.
(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
monetary damages on behalf of the community or neighborhood injured
by that nuisance. Any 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.
SEC. 3. The Judicial Council shall, by September
1, 2010, do both of the following:
(a) Develop, approve, and adopt a petition form that meets the
requirements of paragraph (5) of subdivision (b) of Section 186.22a
of the Penal Code. The form of the petition shall be as simple as
possible, requiring only that the petitioner fill out his or her
name, check any applicable box or boxes, and provide a signature,
under penalty of perjury. The petition shall contain a notice that if
an individual cannot afford the petition filing fee, the individual
may file for a waiver of the fee under Section 68632 of the
Government Code.
(b) Ensure that an injunction issued against an individual
pursuant to Section 186.22a of the Penal Code or issued pursuant to
Section 3479 or 3480 of the Civil Code enjoining criminal street gang
activity as a nuisance shall prominently display a notice, in bold
20-point type, that states that the individual may, after five years,
petition the court to terminate the injunction by use of the form
described in subdivision (a).
SEC. 4. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.