BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 492 (Maldonado)
As Amended April 1, 2009
Hearing date: April 14, 2009
Penal Code
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SCHOOL LOITERING AND GANG ACTIVITY
HISTORY
Source: Author
Prior Legislation: SB 1666 (Calderon) - Ch. 726, Stats. 2008
SB 1128 (Alquist) - Ch. 337, Stats. 2006
AB 2593 (Pacheco) - Ch. 343, Stats. 2002
AB 1344 (Sweeney) - Ch. 163, Stats. 1995
Support: California District Attorneys Association; Los Angeles
County District Attorney; Crime Victims Action Alliance
Opposition:California Public Defenders Association
KEY ISSUES
WHERE A DEFENDANT HAS BEEN CONVICTED OF LOITERING ON SCHOOL
GROUNDS PURSUANT TO PENAL CODE SECTION 653b, AND HE OR SHE IS
REQUIRED TO REGISTER WITH LAW ENFORCEMENT FOR A GANG RELATED
CONVICTION, SHOULD THE MAXIMUM JAIL TERM BE INCREASED FROM SIX
MONTHS TO ONE YEAR, SHOULD THE MAXIMUM FINE BE INCREASED FROM
$1,000 TO $2,000, AND SHOULD THE COURT BE REQUIRED TO CONSIDER
SPECIFIED MINIMUM JAIL TERMS ON SECOND OR SUBSEQUENT
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CONVICTIONS?
(CONTINUED)
WHERE A DEFENDANT WHO IS REQUIRED TO REGISTER FOR GANG ACTIVITY IS
GRANTED PROBATION FOR LOITERING ON SCHOOL GROUNDS, SHOULD THE
CONDITIONS OF PROBATION INCLUDE THAT HE OR SHE CANNOT ENTER SCHOOL
GROUNDS WITHOUT THE PERMISSION OF THE SCHOOL ADMINISTRATOR, UNLESS
THE COURT EXCUSES THIS CONDITION IN THE INTERESTS OF JUSTICE?
PURPOSE
The purposes of this bill are to 1) increase the maximum fine
and jail term for loitering on school grounds from $1,000 to
$2,000 and six months and one year respectively if the defendant
is required to register with law enforcement for a gang-related
conviction; 2) direct the court to consider minimum jail terms
of 10 days for a second conviction and 90 days for subsequent
convictions; 3) require as a condition of any grant of probation
that the defendant not enter school grounds without the express
permission of the school administrator; and 4) grant the court
discretion to not impose the school entry prohibition in the
interests of justice.
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
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members of the gang, is guilty of an alternate
felony-misdemeanor. (Pen. Code 186.22, subd. (a).)
Existing law provides that any person who is convicted of a
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
special punishment. (Pen. Code 186.22, subd. (b).)
Existing law provides that is a misdemeanor, punishable by a
jail term of up to six month and a $1,000 fine, for any person
to loiter at school or public place at or near which children
attend or normally congregate, if the person has been asked to
leave the place. (Pen. Code 653b.)
Existing law establishes enhanced misdemeanor penalties for this
crime if the person is required to register as a sex offender.
(Pen. Code 653b, subd. (b).) These penalties are as follows:
Second or subsequent conviction: maximum fine of $2,000
Second conviction: minimum jail term of 10
days
Third conviction: minimum jail term of 90
days
Existing statutory law , ( 653b) provides that one loiters where
he or she lingers in a place without lawful business.
Decisional law applying constitutional principles defines
loitering so as to include an element that the person intended
to commit a crime as the opportunity arose. (In re Christoper
S. (1978) 80 Cal.App.3d 903, 911; Cal. Crim. Jury Inst. 2917.)
This bill creates special misdemeanor penalties and probation
conditions for any person convicted of loitering on school
grounds (Pen. Code 653b, subd. (a)) if the convicted defendant
is required to register with the police for gang activity.
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(Pen. Code 186.30.)
Penalties for loitering on school grounds by a gang
registrant:
o 1st conviction: maximum fine of $1,000,
maximum jail term of 1 year
o 2nd conviction: maximum fine of $2,000,
maximum jail term or 1 year, court shall consider
minimum jail term of at least ten days.
o 3rd conviction: maximum fine of $2,000,
maximum jail term of 1 year, court shall consider
minimum jail term of at least 90 days.
Probation requirements:
o Court must impose condition that the defendant
may not enter school grounds without the express
permission of the school administrator.
o Court can excuse the defendant from this
condition in the interests of justice if the court
states its reasons on the record.
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.<1>
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
----------------------
<1> "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.<2>
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
---------------------------
<2> 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:
The City of Salinas has been experiencing a dangerous
increase in gang-related activity. Last year, 23 of
25 homicides in the city were blamed on gangs.
Five people were murdered in gang-related slayings in
a three day period in January, 2009. Two of the
victims were students at Alisal High School. One
victim, a 15-year-old boy, was shot at 9:00 in the
morning on school grounds.
Children should not be afraid to go to school or
intimidated by illegal activities that occur across a
fence from school property. Gang members in Salinas
are congregating school grounds. How can a student
learn while criminal activity is going on just outside
the school? Gang members have become so brazen in
Salinas that they have posted a gang "hit list" on
YouTube.
SB 492 would prevent gang members from loitering on
school grounds. This bill would add a misdemeanor
sentence enhancement if the defendant convicted of
loitering had been previously been convicted of a
gang-related offense. SB 1128 (Alquist), Chapter 337,
Statutes of 2006, established a precedent by providing
for enhanced penalties where sex offenders are
convicted of loitering on school grounds.
Finally, this bill provides that a gang participant
who is on probation for school loitering may not enter
school grounds without the permission of a school
official. While still allowing these probationers to
go on campus for legitimate reasons, this provision
will prevent gang members on probation from
congregating near school grounds.
2. Background on Gang Activity in Salinas in the Past Decades;
Recent Grant Programs General
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General History of Gang Problems in Salinas
While the author's statement describes recent gang-related
murders in Salinas, gang activity is not new to Salinas.
Salinas and nearby cities have had relatively serious gang
problems for many decades. Media reports have noted that gang
problems around Salinas often arise from deep and serious
conflicts between Latino youth who divide along north-south
lines and between recent immigrants and those born in the United
States. While other factors are certainly at work, gang
conflict around Salinas is often described as being between
Norte?o (northern) and Sure?o (southern) Latino groups.
(Monterey County Herald, March, 26, 2009; KQED, Oct. 21, 2003.)
Controversial Gang Limitation Programs in Salinas High Schools
Salinas high schools began special programs to limit gang
conduct and recruitment thirty years ago. At that time the
schools urged students to sign anti-gang behavior "contracts."
The documents included spaces where a school official could note
alleged gang-related activity. These notes in a contract were
intended to warn a student and his or her parents about
suspected gang activity. In the past few years, the contracts
have become controversial because they have been used in
juvenile court as evidence of gang activity. The percentage of
contracts made with Latino students, (98%) significantly
exceeded the percentage of Latinos (77%) in the school district.
(Monterey County Herald, March 26, 2006.)
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State Funding for Gang Programs
Salinas received a $357,000 CalGRIP (the California Gang
Reduction, Intervention and Prevention initiative) grant in 2008
to offer job training to high-risk gang members. The training
is offered together with a warning that gang violence will be
the target of vigorous prosecution. Monterey County also
received a CalGRIP grant of $500,000 for gang counseling, job
training and green-industry apprenticeships. Part of this money
was also used for increased activity in Salinas by the Highway
Patrol to assist local law enforcement in gang suppression.
3. Gang Control and Prevention Research
Gang researchers have concluded that government policies
that cause gang members to identify with each other and the
gang increases gang activity and membership. Focusing on
gang suppression through aggressive arrests and
prosecutions has been shown to be ineffective. Suppression
is helpful only as part of comprehensive approach to gang
problems. Essentially, gang researchers have recommended
gang programs that involve the entire community. Troubled
and broken communities tend to produce gangs. Suppression
and intervention by outside entities will not break the
pattern of gang formation and participation. (Klein, The
American Street Gang, Oxford Univ. Press, 1995; Spergel,
Evaluation of the Little Village Project; Univ. of Chicago
2003; Rice - LA Advancement A Call to Action:
Comprehensive Solution to LA's Gang Violence, 2007.)
4. Application of This Bill
This bill increases misdemeanor penalties for school loitering
by gang participants or members. The bill also requires that
where a gang participant has been granted probation for
loitering on
school ground, probation must include a condition that the
probationer may not enter school grounds without the express
permission of the administrator. The court has the discretion
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to not impose this condition in the interests of justice.
The bill would thus allow immediate arrest on school grounds of
a person covered by the probation condition. It does appear
that gang-related crimes - including murders - have occurred on
Salinas high school campuses during school hours. It is likely
that similar crimes have occurred across the state. These
crimes may be done to intimidate students in a very public way.
Such crimes will almost invariably lead to reprisals, which lead
to further reprisals. Arguably, allowing arrest of a gang
member before a violent crime has occurred, or where the gang
member seeks to intimidate students at the school, could perhaps
prevent gang crimes at schools. While this may have relatively
little effect on the overall gang problems in the community at
large, the bill may allow administrators some greater control
over the smaller community encompassed by the high school
campus, students, teachers and administrators.
SHOULD THE MISDEMEANOR PENALTIES FOR LOITERING ON SCHOOL GROUNDS
BY A REGISTERED GANG PARTICIPANT BE RAISED TO A MAXIMUM OF ONE
YEAR IN JAIL AND A FINE OF $2,000, AND SHOULD THE COURT BE
DIRECTED TO CONSIDER SPECIFIED MINIMUM JAIL TERMS FOR REPEATED
OFFENSES?
WHERE A GANG PARTICIPANT WHO IS CONVICTED OF LOITERING ON SCHOOL
GROUNDS IS GRANTED PROBATION, SHOULD THE CONDITIONS OF PROBATION
INCLUDE THAT THE PROBATIONER MAY NOT ENTER SCHOOL GROUNDS
WITHOUT THE PERMISSION OF THE SCHOOL ADMINISTRATOR, UNLESS THE
COURT EXCUSES THE CONDITION IN THE INTERESTS OF JUSTICE?
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