BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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8
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SB 282 (Wright)
As Amended April 13, 2009
Hearing date: April 21, 2009
Penal Code
JM:mc
GANGS:
INJUNCTIONS - DURATION AND RENEWAL
HISTORY
Source: Author
Prior Legislation: SB 1126 (Cedillo) - Ch. 38, Stats. 2008
SB 271 (Cedillo) - Ch. 34, Stats. 2007
SB 2034 (Lockyer) - Ch. 631, Stats. 1998
Support: Peace Officers' Research Association of California
(PORAC)
Opposition:California District Attorneys Association; Los
Angeles City Attorney; Fresno County District Attorney; Ventura
County District Attorney
KEY ISSUES
SHOULD THE MAXIMUM PERIOD OF A GANG INJUNCTION BE FIVE YEARS?
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SHOULD PROSECUTORS BE ALLOWED TO OBTAIN A FIVE-YEAR EXTENSION OF A
GANG INJUNCTION AGAINST A PARTICULAR PERSON IF THE PERSON HAS
VIOLATED THE INJUNCTION OR COMMITTED A NEW CRIME?
PURPOSE
The purposes of this bill are to 1) provide that a gang
injunction, unless renewed, shall expire five years after it is
imposed; 2) allow the prosecutor, within three months of the
expiration of the injunction, to apply for its renewal through a
certification that a person subject to the injunction has
violated the injunction or committed a new crime; and 3) provide
that the court, after hearing, may extend the injunction for
five years against the person who is the subject of the
extension proceeding, as specified.
Gang Statutes Generally - Definition of a Street Gang,
Penalties
Existing law defines a "criminal street gang" as any ongoing
organization, association, or group of three or more persons .
. . having as one of its primary activities the commission of
one or more enumerated offenses, having a common name or
identifying sign or symbol, and whose members engage in a
pattern of gang activity. (Pen. Code 186.22, subd. (f).)
Existing law provides that any person who actively participates
in a criminal street gang with knowledge that its members engage
in or have engaged in a pattern of criminal gang activity and
who promotes, furthers, or assists in any felonious conduct by
members of the gang, is guilty of an alternate
felony-misdemeanor. (Pen. Code 186.22, subd. (a).) Existing
law does not specifically define what constitutes being a gang
member.
Existing law provides that any person who is convicted of a
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felony committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific
intent to promote, further, or assist in criminal conduct by
gang members, shall receive a specified sentence enhancement or
specified life term. These penalties range from a triad of 2,
3, or 4 years, to a life term with a minimum term of 15 years.
(Pen. Code 186.22, subd. (b).)
Existing law provides that any person who is convicted of
either a felony or misdemeanor that is committed for the
benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members,
shall be punished by imprisonment in the county jail for up to
one year, or by 1, 2, or 3 years in state prison. (Pen. Code
186.22, subd. (d).)
Existing law defines "pattern of criminal gang activity" as the
commission of two or more of enumerated offenses, provided at
least one of the offenses occurred after the effective date of
the statute and the last of the offenses occurred within three
years after a prior offense, and the offenses were committed on
separate occasions, or by two or more persons. (Pen. Code
186.22, subd. (e).) These offenses need not result in a
conviction, although prosecutors typically prove the pattern
through prior convictions.
Existing Law on Nuisances Generally
Existing California Supreme Court decisions state that the
"touchstone of the public nuisance doctrine" is the "notion of
the community and its collective values." (People ex. rel Gallo
v. Acuna (1997) 14 Cal.4th 1090, 1109.)
Existing decisional law holds that individual gang members can
be enjoined from creating a nuisance through such acts as
intimidating the public and associating in public view with
other known gang members in a specified geographic area.
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(People ex. rel Gallo v. Acuna, supra, 14 Cal.4th 1090, 1110,
1117.)
Existing appellate decisions appear to hold conflicting views
concerning whether a gang can be sued (including for injunctive
relief) as an entity - specifically an unincorporated
association - as opposed to individual members of the gang.
(People v. Colonia Chiques (2007) 156 Cal.App.4th 31; People v.
Broderick Boys (2007) 149 Cal.App.4th 1506, 1520-1522.)<1>
Existing decisional law provides "[F]or the purposes of a gang
injunction an active gang member . . . participates in or acts
in concert with an ongoing . . . association or group of three
or more persons, whether formal or informal, having as one of
its primary activities the commission of acts constituting the
enjoined public nuisance, having a common name or . . . symbol
and whose members individually or collectively engage in the
acts constituting the enjoined public nuisance. The
participation or acting in concert must be more than nominal,
passive, inactive or purely technical." (People v. Englebrecht
(2001) 88 Cal.App.4th 1236, 1261, italics added.)
Existing criminal law defines a nuisance as anything injurious
to health, indecent, or offensive to the senses, or an
obstruction to the free use of property, so as to interfere with
the enjoyment of life or property by a community, neighborhood,
or considerable number of persons. A nuisance is also anything
that obstructs the passage or use of any navigable waters, or
any public place or highway. Maintaining a nuisance is a
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<1> In Gallo, the California Supreme court stated in dicta that
a gang and its individual members (as opposed to individual
members alone) may be enjoined from engaging in nuisance
conduct. It appears that the Supreme Court has not considered
this issue in a more recent case. (People ex rel. Gallo v.
Acuna, supra, 14 Cal.4th at p. 1124.) In Broderick Boys, the
prosecution served a single member of a gang and claimed that
such service constituted valid service on the gang as an
unincorporated association. It is unclear from Broderick Boys
just what would constitute valid service on the gang as an
entity.
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misdemeanor. (Pen. Code 370, 372.)
Existing civil law defines a nuisance in very similar terms to
the definition of a nuisance in the Penal Code. The Civil Code,
however, specifically includes a reference to the illegal
commerce in controlled substances. (Civ. Code 3479.)
Specific Sections Concerning Controlled Substance Nuisances
Existing law provides that every building or place used for the
purpose of unlawful acts involving controlled substances is a
nuisance which shall be enjoined, abated, and . . . for which
damages may be recovered, whether it is a public or private
nuisance. (Health & Saf. Code 11570.)
Existing law provides that the district attorney, city attorney,
or citizen may bring "an action" to abate a nuisance and
permanently enjoin any person maintaining it as to any building
or place used to sell, keep, etc., controlled substances.
(Health & Saf. Code 11571.)
Existing law provides that if the court finds that any vacancy
resulting from closure of a property in a controlled substance
nuisance abatement action, the court may, in lieu of closing the
building, order the owner or person allowing drug-related
conduct to occur to pay damages "in an amount equal to fair
market rental value . . . for one year . . . . Damages shall be
paid to the city or county in which the nuisance exists for
purposes of drug abuse prevention and education programs.
(Health & Saf. Code 11581.)
Existing law provides that a court may assess a civil penalty
not to exceed $25,000 against a controlled substances nuisance
defendant. One-half of the civil penalty shall be deposited in
the Restitution Fund, and the other half paid to the city in
which the judgment was entered for the enhancement of nuisance
abatement, if the action was brought by the city attorney or
prosecutor. If the action was brought by a district attorney,
one-half of the penalties shall be paid to the county treasurer.
(Health & Saf. Code 115811.)
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Existing Law Concerning Gang Injunctions and Related Damage
Claims
Existing law provides that any building or place used by members
of a criminal street gang for committing specified felony
offenses is a nuisance subject to an injunction. (Pen. Code
186.22a.) The action for injunction may be brought by the
county district attorney in the name of the people, by the city
attorney, or any private person. (Pen. Code 186.22a, subd.
(a).)
Existing law , with specified exceptions, provides that the
controlled substance nuisance abatement law (Health & Saf. Code
11570 et seq.) shall apply to gang nuisance actions brought
under subdivision (a) of Penal Code Section 186.22a. (Pen. Code
186.22a, subd. (b).)
Existing law provides that the Attorney General, city or
district attorney, upon issuance of an injunction pursuant to
Penal Code Section 186.22a to abate gang activity constituting a
nuisance, or pursuant to the general nuisance abatement
provisions in Civil Code Section 3479, may seek damages on
behalf of the community injured by the nuisance. The recovered
damages shall be deposited into a fund for payment to the
governing body in whose political subdivision the affected
community is located, for use solely for the benefit of the
community that has been injured by the nuisance. (Pen. Code
186.22a.)
Existing law provides that the facts establishing a gang
nuisance, and thus the facts authorizing a gang injunction, must
be proved by clear and convincing evidence. (People v.
Englebrecht (2001) 88 Cal.App.4th 1236.)
Existing law provides that damages for a gang nuisance "shall be
paid by or collected from assets of the criminal street gang or
its members." However, "only members of the criminal street
gang who created, maintained or contributed to the creation or
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maintenance of the nuisance shall be personally liable to
payment of the damages awarded." (Pen. Code 186.22a, subd.
(c).)
This bill provides that a gang nuisance injunction issued
pursuant to Penal Code Section 186.22a may last no longer than
five years.
This bill authorizes prosecutors to obtain an extension of a
Penal Code Section 186.22a gang injunction against a particular
person who "has violated that injunction or committed a new
crime."
This bill includes the following findings and declarations:
Federal law, applicable to California, requires a (28
C.F.R. 23.20 (h)) a five-year limit on the retention of
names in a gang registry database.
California law requires gang offenders to register with
law enforcement for five years. (Pen. Code 186.30.)
Existing law does not provide a time limit on the duration
of gang injunctions as applied to an individual.
The Legislature intends to place a limit on the duration
of gang injunctions as applied to an individual that is
consistent with related state and federal laws.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
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incarceration.<2>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
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<2> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<3>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
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<3> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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According to the author:
Current law does not provide for any set term when it
comes to gang injunctions as applied to an individual.
Most individuals subject to these injunctions cannot
afford an attorney, so very few contest the initial
court proceeding in which the injunction is imposed.
These individuals can theoretically be subject to the
injunction until they die, regardless of whether they
still are, or even were, members of a gang.
This practice goes beyond any reasonable law
enforcement rationale. Since the typical scope of a
gang injunction prohibits a number of legitimate
activities, such as visiting or being present in
certain locations or associating with particular
individuals, such restrictions may be very onerous.
The terms of an injunction may even prevent a person
from visiting a relative. There is no uniform way for
a person, at reasonable cost, to get out from under an
injunction. The onus should not be on an individual
to incur the costs necessary to avoid being
permanently covered by a gang injunction.
2. Five-Year Limit on Gang Injunctions Likely Applies only to
Injunctions Issued Pursuant to Penal Code Section 186.22a, not
those Issued Pursuant to Civil Code Section 3479
Penal Code Section 186.22a authorizes and defines gang nuisance
injunctions under certain circumstances. That section also
authorizes a prosecutor to maintain a civil action for damages
caused by the enjoined nuisance activity. The action for
damages can be based on an injunction issued pursuant to Penal
Code Section 186.22a or Civil Code Section 3479.
Committee research on prior bills found that most gang
injunctions are issued under the general nuisance abatement and
injunction provisions in Civil Code Section 3479, not Penal Code
Section 186.22a. Thus, a five-year maximum duration on
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injunctions imposed pursuant to Penal Code Section 186.22a may
have relatively little effect on the length of gang injunctions
in practice.
SHOULD A LIMIT ON GANG INJUNCTIONS IMPOSED PURSUANT TO PENAL
CODE SECTION 186.22a ALSO APPLY TO GANG INJUNCTIONS IMPOSED
PURSUANT TO CIVIL CODE SECTION 3479?
3. Standards and Reasons for Renewing an Injunction
This bill provides that a gang injunction shall expire five
years after it is imposed. However, the prosecutor can obtain a
renewal of the injunction against a person covered by the
injunction if the prosecutor can establish either that the
person has violated the injunction or that the person has
committed a "new crime." The renewal provision raises a number
of issues.
A Crime Includes an Infraction
The bill allows renewal of an injunction for a five-year period
where the defendant commits a crime. A "crime" can be an
infraction, misdemeanor or a felony. Essentially, a crime is an
act committed in violation of the law that is subject to
punishment. A crime includes a criminal act and a criminal
state of mind. (Pen. Code 15, 20.)
A moving violation under the Vehicle Code typically is an
infraction, and thus a crime. Other minor offenses are
infractions. A gang injunction could be renewed for five years
under this bill for an offense for which only a fine could be
imposed.
SHOULD ANY CRIME, INCLUDING AN INFRACTION, COMMITTED BY A PERSON
SUBJECT TO A GANG INJUNCTION BE SUFFICIENT TO JUSTIFY RENEWAL OF
A GANG INJUNCTION, OR SHOULD RENEWAL BE ALLOWED ONLY UPON THE
COMMISSION OF A RELATIVELY SERIOUS OFFENSE?
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Renewal of an Injunction need not be Based on an Offense Related
to the Enjoined Nuisance in Particular or Gang-related Offense
Generally
The bill does not require that the person subject to renewal of
a gang injunction be found to have committed an offense that
relates to or concerns the nuisance that is the basis for the
injunction. Arguably, renewal of a gang injunction should be
done because the person's conduct exacerbates or promotes the
nuisance. It would appear that the purpose of the renewing
injunction would be to prevent the person subject to the renewal
from engaging in activity that harms the community in the form
of the nuisance - not simply to punish or control a person for
conduct unrelated to gang activity.
Renewing an injunction based on a crime that is not related to
the enjoined conduct, or even to gang activity generally, could
be found to be arbitrary. An arbitrary renewal of a gang
injunction would face close judicial scrutiny.
The bill does not state whether or not a conviction is required
before a crime committed by the person subject to an injunction
can be the basis for renewal of the injunction. If a conviction
is not required, a gang injunction could be renewed on
relatively weak evidence or limited proof.
SHOULD A CRIME THAT SUBJECTS A PERSON TO RENEWAL OF A GANG
INJUNCTION BE GANG RELATED, OR OTHERWISE BE RELATED TO THE GANG
NUISANCE ENJOINED IN THE ACTION?
IF THE BASIS OF RENEWAL OF A GANG INJUNCTION IS THE COMMISSION
OF A CRIME BY THE PERSON SUBJECT TO THE INJUNCTION, MUST THE
PROSECUTOR SHOW THAT THE PERSON WAS CONVICTED OF THE CRIME?
Renewal of an Injunction Based on a Violation of the Pending
Injunction
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This bill allows renewal of a gang injunction if a person has
violated the terms of the injunction. The bill does not direct
the court to consider the gravity of the violation. The
person's conduct in violation of the injunction thus could range
from intimidation of citizens to merely visiting a friend or
relative for a short time.
WHERE A COURT HEARS AN APPLICATION FOR A RENEWAL OF A GANG
INJUNCTION BASED ON A VIOLATION OF THE INJUNCTION BY A PERSON
SUBJECT TO THE INJUNCTION, SHOULD THE BILL PROVIDE THAT A COURT
SHOULD CONSIDER THE GRAVITY AND CIRCUMSTANCES OF THE VIOLATION?
Burden of Proof to Renew a Gang Injunction
Existing case law provides that the facts establishing a gang
nuisance and supporting a gang injunction must be proved by
clear and convincing evidence. (People v. Englebrecht, supra,
88 Cal.App.4th 1236.) The bill does not state the standard of
proof for renewal of an injunction.
SHOULD THE STANDARD OF PROOF TO ESTABLISH FACTS TO SUPPORT
RENEWAL OF A GANG INJUNCTION BE CLEAR AND CONVINCING EVIDENCE?
4. Research Indicates that Most Gang Members Remain in a Gang for
a Relatively Short Period of Time
Popular culture includes many references to the idea that a gang
member is a gang member for life. Research does not support
that assumption. Malcolm Klein, a long-time gang researcher and
a (now retired) faculty member at the University of Southern
California, has published numerous books and articles on gangs
in Los Angeles and around the world. Klein's most recent work -
written with Cheryl Maxson of the University of California,
Irvine - summarizes hundreds of gang studies. Klein and Maxson
conclude: "Most gang members do not remain gang members;
membership is a transitory status." A major study released in
2004 concluded that more than half of youths who join gangs
sever those ties within one year." (Klein and Maxson, Street
Gang Patterns and Policies (2006) Oxford Univ. Press, pp.
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153-154.)
On March 23, 2009, the Assembly Public Safety Committee held a
hearing on gang activity in California. Paul Seave, the
Governor's Director of Gang and Youth Violence Policy, testified
that the average gang member leaves the gang within a year.
DO MOST GANG MEMBERS LEAVE A GANG WITHIN A RELATIVELY SHORT
PERIOD OF TIME, SUCH AS A YEAR?
SHOULD A GANG INJUNCTION HAVE A MAXIMUM LENGTH OF TIME OF FIVE
YEARS, UNLESS THE INJUNCTION IS RENEWED AGAINST A PARTICULAR
PERSON WHO HAS VIOLATED THE INJUNCTION OR COMMITTED A NEW CRIME?
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