BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 492
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          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. 








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          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  








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               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?









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            "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.   








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            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  








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            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'.








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          "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  








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            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  








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            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  








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               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  








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               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