BILL ANALYSIS SB 492 Page 1 Date of Hearing: June 16, 2009 Counsel: Kimberly A. Horiuchi ASSEMBLY COMMITTEE ON PUBLIC SAFETY Juan Arambula, Chair SB 492 (Maldonado) - As Amended: April 23, 2009 SUMMARY : Creates enhanced penalties for registered gang members, as specified, to return within 72 hours after being asked to leave a school property or other public place at or near where children normally congregate. Specifically, this bill : 1)Punishes any person required to register as a gang member, as specified and who loiters on or near school property after being asked to leave as follows: a) Upon first conviction, by a fine not exceeding 1,000; by imprisonment in a county jail for a period of not more than one year; or by both that fine and imprisonment. b) Upon a second conviction, by a fine not exceeding $2,000; by imprisonment in a county jail for a period of not more than one year; or by both that fine and imprisonment. The court shall consider a period of imprisonment of at least 10 days. c) If the defendant has been previously convicted two or more times, by a fine not exceeding $2,000; by imprisonment in a county jail for a period of not more than one year; or by both that fine and imprisonment. The court shall consider a period of imprisonment of at least 90 days. 2)Provides that if the court grants probation to a defendant who is convicted of, or a minor as to whom a petition is sustained for, a violation of loitering on or near school grounds after being asked to leave and the defendant or minor is a person required to register as a gang member with the chief of police or sheriff, the court shall impose a condition prohibiting the defendant from entering the grounds of a school without the express permission of the chief administrative officer of the school. SB 492 Page 2 3)Provides that the court may excuse a defendant or minor from this condition in the unusual case in which the interests of justice warrant this excuse. The court shall state the reasons on the record for excusing a defendant or minor from this condition. EXISTING LAW : 1)Requires persons convicted of a gang-related offenses, as specified shall register with the chief of police of the city in which he or she resides, or the sheriff of the county if he or she resides in an unincorporated area, within 10 days of release from custody or within 10 days of his or her arrival in any city, county, or city and county to reside there, whichever occurs first. [Penal Code Section 186.30(a).] 2)States every person who loiters about any school or public place at or near which children attend or normally congregate and who remains at any school or public place at or near which children attend or normally congregate, or who reenters or comes upon a school or place within 72 hours, after being asked to leave by the chief administrative official of that school or, in the absence of the chief administrative official, the person acting as the chief administrative official, or by a member of the security patrol of the school district who has been given authorization, in writing, by the chief administrative official of that school to act as his or her agent in performing this duty, or a city police officer, or sheriff or deputy sheriff, or Department of the California Highway Patrol peace officer is a vagrant, and is punishable by a fine of not exceeding $1,000 or by imprisonment in the county jail for not exceeding six months, or by both the fine and the imprisonment. [Penal Code Section 653b(a).] 3)Provides that every person required to register as a sex offender who loiters, as specified, shall be punished as follows: a) Upon a first conviction, by a fine not exceeding $2,000, by imprisonment in a county jail for a period of not more than six months, or by both that fine and imprisonment. b) If the defendant has been previously convicted once of a violation of loitering, as specified, by imprisonment in a SB 492 Page 3 county jail for a period of not less than 10 days or more than six months, or by both imprisonment and a fine of not exceeding $2,000, and shall not be released on probation, parole, or any other basis until he or she has served at least 10 days. c) If the defendant has been previously convicted two or more times of loitering, as specified, by imprisonment in a county jail for a period of not less than 90 days or more than six months, or by both imprisonment and a fine of not exceeding $2,000, and shall not be released on probation, parole, or any other basis until he or she has served at least 90 days. [Penal Code Section 653(b)(1) to (3).] 4)States any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years. [Penal Code Section 186.22(a).] FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement : According to the author, "The City of Salinas has been experiencing a dangerous increase in gang-related activity. Last year, 23 of the 25 homicides in the city were blamed on gangs. During a three-day period in January 2009, five people were killed in separate gang-related incidences. Of those five killed, two were students at Alisal High School, including a fifteen-year-old boy who was fatally shot behind the school on Monday, January 12. The boy was near a soccer field at the back of campus at 9:00 a.m., during school hours, when he was shot in the torso. "Children should not be afraid to go to school or intimidated by illegal activities occurring just on the other side of the fence. It is clear by the violence in Salinas that gang members are congregating near school grounds. How can a student be expected to learn with criminal activity going on right outside the school? SB 492 Page 4 "Gang members in Salinas have become increasingly brazen in their illegal activities, going so far as to post a gang 'hit list' on YouTube. SB 492 would prevent convicted gang members from loitering on or around school grounds. While loitering is already a crime, this bill would add a sentencing enhancement if the person has been previously convicted of a gang offense. SB 1128 (Alquist), Chapter 337, Statutes of 2006, which amended Penal Code Section 653b, established legal precedence by providing for sentencing enhancements when registered sex offenders are convicted of loitering around schools. "Additionally, this bill would prohibit a criminal on probation from entering school grounds without the permission of a school official. While still allowing convicted gang members the ability to be on campus for legitimate reasons, this provision will prevent gang members on probation from congregating near school grounds by making the prohibition a condition of probation. 2)Current Law Related to Loitering on School Property and Gang Registration : Existing law states that any person who loiters on school property or public place where children attend school or normally congregate and who returns within 72 hours of being asked to leave is guilty of a misdemeanor, punishable by up to six months in the county jail and/or a fine of not more than $1,000. [Penal Code Section 653b(a).] In 2006, a graduated penalty scheme was created to punish any registered sex offender who loiters on school property, as prohibited in Penal Code Section 653b. Similarly, this bill also creates a graduated penalty scheme for registered gang members to loiter on school property. Penal Code Section 186.30(b) states a person must register as a gang member when convicted of any offense or enhancement found to be for the benefit of, or at the direction of, a criminal street gang or any crime determined by the court to be gang-related at the time of sentencing or disposition. Gang registration terminates after five years. [Penal Code Section 186.32(c).] 3)Reports of Effective in Combating Gang Violence : The Advancement Project and the Los Angeles City Council have released reports on the effectiveness of strategies to reduce gang violence, specifically in Los Angeles City and County. SB 492 Page 5 In a statement given to the Los Angeles County Education Coordination Council, Constance Rice, a renowned expert on studying the most effective methods of combating gang violence, stated: "Over the past 10 years, 450,000 children under the age of 18 have been arrested, and 100,000 children have been shot over the past 30 years. In the past 15 years, 15 law enforcement officers have lost their lives. In the city of Los Angeles alone - the scope of our report, 300,000 children are trapped in gang-saturated zones; 120,000 of them in zones of violence and live in poverty. Of the 400 gangs and 39,000 gang members active citywide, between 7% and 8% are persistently violent. So, we need to focus on protecting children from that smaller core, and prevent gangs from recruiting more children. "But we're stuck when mass incarceration is our first and only response, and nonviolent offenders return to their communities having learned violence in jail. The research shows the only thing that will work is a comprehensive, public health-based, wrap-around strategy that addresses the root causes of violence. There are effective intervention programs, and the city, county, and school district together spend a whopping $958 million a year on the issue, but what's required is a coordinated, systematic approach with built-in accountability. There is no one in government whose job is to get kids out of gangs. "And wraparound strategies work. Look at the example of the 2003 'Summer of Success.' With $300,000 left over from his election campaign, plus privately raised matching funds, former city councilmember Martin Ludlow was able to saturate 'the Jungle,' a battleground for four feuding gangs in his district, with midnight swimming, midnight soccer, tutoring, reading programs, hip-hop contests, and other activities. The idea was simple: violence would decline if youth who normally only had access to gangs were offered meaningful alternative activities scheduled round the clock. During nine weeks of that summer, local basketball courts stayed open past midnight for tournaments and games. Youth had paid internships to conduct outreach to the community. "Gang intervention workers from the Amer-I-Can collaborative negotiated with local gangs for safe passage and no violence agreements. LAPD 'Safer Cities' community police officers SB 492 Page 6 cooperated with the program (but, unfortunately, other LAPD officers refused to cooperate with the effort). Neighborhood community groups collaborated to offer computer games, tutoring, and as many other program opportunities as possible during the 8:00 p.m. to 3:00 a.m. hours when most of the violence was occurring. A prominent radio station featured the program throughout the summer. "The results were stunning. Murders were reduced to zero, and every kid in that neighborhood was safe for nine weeks. This effort demanded the participation of school facilities, the Department of Water and Power, the recreation and parks department, and numerous other city and county departments, and required budgets for overtime, liability agreements, insurance, and so on, but compared to the value of saving even one child's life, the price of this program was a huge bargain. "Applying a similar strategy throughout the county - while adding economic development and other services, would systematize the effort and finally address the public health emergency that gang violence presents. The community has to co-pilot this effort, and civic and faith-based funding needs to be built into it. Los Angeles County, too, needs to make this happen at the regional level-gangs don't stop at city limits. This is about their hearts and minds and the way they think about themselves. And it's about politics. We may know what to do on a micro level, but this is about systemic, lasting change." [Constance Rice, statement given to the Los Angeles County Education Coordination Council, April 27, 2007, found at.] The City of Los Angeles also commissioned the Advancement Project to submit a report studying why gang reduction strategies implemented over the past five years have been unsuccessful. The executive summary stated: "The City of Los Angeles has had a violence crisis for over 20 years. Beneath the relative citywide safety and tranquility, extraordinary violence rages in Los Angeles' high crime zones. A former World Health Organization epidemiologist who studies violence as a public health problem concluded that, 'Los Angeles is to violence what Bangladesh is to diarrhea, which means the crisis is at a dire level requiring a massive response'. SB 492 Page 7 "Moreover, Los Angeles is the gang capital of the world. Although only a small percentage of the City's 700 gangs and estimated 40,000 gang members engage in routine violence, the petri dish of Los Angeles' high crime neighborhoods has spawned 'a violent gang culture unlike any other . . . . ' The violence from this subset is at epidemic levels: almost 75 percent of youth gang homicides in the State of California have occurred in Los Angeles County, creating what experts have concluded is a regional 'long-term epidemic of youth gang homicide and violence,' to which the City is the major contributor. "This epidemic is largely immune to general declines in crime. And it is spreading to formerly safe middle class neighborhoods. Law enforcement officials now warn that they are arriving at the end of their ability to contain it to poor minority and immigrant hot zones. "After a quarter century of a multi-billion dollar war on gangs, there are six times as many gangs and at least double the number of gang members in the region. Suppression alone - and untargeted suppression in particular - cannot solve this problem. Law enforcement officials now agree that they cannot arrest their way out of the gang violence crisis and that their crime suppression efforts must be linked to competent prevention, intervention, and community-stabilizing investment strategies. This report is about those strategies." (The Advancement Project, A Call to Action: A Case for a Comprehensive Solution to LA's Gang Violence Epidemic, Phase III Report, Executive Summary, December 29, 2006.) 4)Gang Injunctions : Under current law, local governments may serve injunctions on gang members to prohibit congregation in a certain area. Gang injunctions are an alternative method of controlling where registered gang members loiter. In 1988, the California Legislature enacted the Street Terrorism Enforcement and Prevention (STEP) Act. The STEP Act was specifically aimed at ending gang-related activity by punishing a broad spectrum of gang-related conduct. Under this act, an individual who participates in a criminal gang knowing the gang has or is engaging in a "pattern of criminal activity" may be punished. An individual's participation must be active and the gang member must devote at least a substantial part of his or her time and effort to the criminal SB 492 Page 8 street gang. However, a gang member's crimes do not have to benefit, further or relate to the gang. Rather, the predicate crimes need only occur within three years of each other and the offenses must be committed on separate occasions or by two or more persons. The STEP Act also provides sentence enhancements for felony convictions committed in furtherance of, or in association with, the gang. Additionally, the STEP Act declares that every building or place used for the purpose of committing crimes by criminal street gang members is a public and/or a private nuisance. [Bergen Herd. Note: Injunctions as a Tool to Fight Gang-Related Problems in California after People Ex Rel Gallo vs. Acuna: A Suitable Solution ?, 28 Golden Gate University Law Review, 629 (1998).] Existing law characterizes a public nuisance as "one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal." (Civil Code Section 3480.) In its declaration that any place used for gang-related activity is a public nuisance, the STEP Act created authority to abate the nuisance by enjoining further criminal activity. [Penal Code Section 186.22a(b).] Gang injunctions are filed in civil court where, after a hearing, the judge has discretion to issue a preliminary or permanent injunction prohibiting identified individuals from being present in a specified area. All named gang members are served notice of the hearing and the injunction. If a preliminary injunction is issued, targeted individuals must be served again with amended papers before the injunction may be enforced. Offenders can be prosecuted in either civil or criminal court if it is determined he or she violated the injunction. [Maxson, Hennigan & Sloane, It's Getting Crazy Out There: Can a Civil Gang Injunction Change a Community? 4 Criminology & Public Policy 3 (Aug. 2005), 577-606.] 5)Conditions of Probation : Provisions of this bill state that if the defendant is convicted of loitering on school property, as specified, after being asked to leave and is also a registered gang member, the court must impose a condition prohibiting the defendant from entering the grounds of a school without express permission of the school's Chief Administrative Officer. Violating a condition of probation may result in probation revocation and imposition of sentence, which may include jail or prison time. This bill also states SB 492 Page 9 the court may excuse a defendant from this condition in the unusual case in which the interests of justice warrant the excuse. As a general matter, conditions of probation are reasonably related to the offense and are designed to prevent future criminal activity. "A condition of probation will not be held invalid unless it: (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. This test is conjunctive - all three prongs must be satisfied before a reviewing court will invalidate a probation term. As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long the condition is reasonably related to preventing future criminality." Conditions of probation are reviewed by the appellate courts under an abuse of discretion standard. [People vs. Lent (1975) 15 Cal.3rd 759, 764; People v. Olguin, (2008) 45 Cal. 4th 375, 379.] It is likely a court granting probation to any person convicted of loitering on school grounds would also issue a stay away order from that school without reference to the defendant's gang status. However, the probation condition prescribed by this bill prohibits a registered gang member from entering any school not just the school he or she loitered. 6)Related Legislation : SB 282 (Wright) provides that an injunction issued against an individual who is a criminal street gang member shall have a duration of not more than five years, and specifies the circumstances under which the prosecutor may apply for a renewal of the injunction. SB 282 is scheduled to be heard in this Committee today. 7)Arguments in Support : None submitted. 8)Arguments in Opposition : a) According to the California Public Defenders Association , "By setting up increasingly harsh penalties for each violation, this bill would expand and incentive the arrest and incarceration of scores of persons for the crime of loitering-defined as 'delaying, lingering, or idling' on school premises-simply on the basis of a past SB 492 Page 10 status that may not even currently exist. There is no requirement in the bill that the person arrested currently be a gang member, or even currently be required to register as a gang member. This bill would subject to arrest, prosecution and incarceration, grown men and women who were required to register as a youth, but who are now working as community peace activists or organizers. It could similarly apply to striking or organizing teachers or school staff, to virtually anyone the police chooses to cite. Moreover, a simple belief by an officer that a person might have once had to register could, under this bill, supply probable cause to stop and detain a person, even handcuff and arrest the person, under the bogus pretense of investigating a loitering charge." b) According to the California Attorneys for Criminal Justice , "Current law already provides for criminal penalties for anyone who loiters near school without lawful business. There is no evidence that these state laws or penalties are inadequate in any respect such that there is a public outcry for additional legislation. Furthermore, enhanced penalties for sex offenders were adopted to be consistent with initiatives passed by voters. "This measure would increase the penalties for someone who must register with local law enforcement pursuant to specified statutes. Nothing in this bill requires the prior activity of the individual to be related to interfering with school activities or having any connection to minors whatsoever. While loitering may be prohibited by current law, is it not in and of itself a dangerous or violent crime. Nor does SB 492 require that the individual be engaged in criminal activity at the time-he or she could be merely standing on the street near a school. Additionally, the bill also prohibits standing in a park or any other 'public place' where children congregate, even if someone is just flying a kite. Despite this relatively low bar, SB 492 permits the greatest misdemeanor punishment available-up to one year in the county jail-for merely sitting in one's car near a high school. This punishment may be greater that for any prior gang act. "There is also no such basis for enhancing a person's penalty who is required to register for past criminal street gang activity. And nothing in this legislation provides an SB 492 Page 11 avenue for individuals to prove that they are no longer involved with gangs. Additionally, laws like this proposal become self-fulfilling prophecies in that the enhanced penalties increase the youth's jail time and he or she loses school time and becomes more institutionalized where the chance for meeting hard core gang bangers increases. In the past thirty years, the population of our prisons has increased by ten times without much to show for it except more money going to cage people rather than their education." 9)Prior Legislation : SB 1128, Chapter 337, Statutes of 2006, states that those persons required to register as sex offenders and present on any school property or loiter on any sidewalk in front or adjacent to the school or youth recreational facility where minors are present without lawful business purpose and without permission from the chief operating officer is guilty of a misdemeanor. REGISTERED SUPPORT / OPPOSITION : Support Los Angeles County District Attorney's Office Opposition California Attorneys for Criminal Justice California Public Defenders Association Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916) 319-3744