BILL ANALYSIS SB 492 Page 1 Date of Hearing: July 8, 2009 ASSEMBLY COMMITTEE ON APPROPRIATIONS Kevin De Leon, Chair SB 492 (Maldonado) - As Amended: April 23, 2009 Policy Committee: Public SafetyVote: 4-1 Urgency: No State Mandated Local Program: Yes Reimbursable: No SUMMARY This bill increases penalties for registered gang members, as specified, who return within 72 hours after being asked to leave a school property or other public place at or near where children congregate. (Current law provides for a county jail term of up to six months and/or a fine of up to $1,000.) Specifically, this bill: 1)Makes a first offense punishable by up to 1 year in county jail and/or a fine of up to $1,000. 2)Makes a second offense punishable by up to 1 year in county jail and/or a fine of up to $2,000, and requires the court to consider at least 10 days of imprisonment. 3)Makes a third or subsequent offense punishable by up to 1 year in county jail and/or a fine of up to $2,000, and requires the court to consider a at least 90 days of imprisonment. 4)Provides that if the court grants probation to a defendant for this offense, 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. (Current law authorizes the court to impose conditions of probation.) FISCAL EFFECT 1)No direct state cost. 2)Unknown, potentially moderate non-state reimbursable local SB 492 Page 2 incarceration costs. COMMENTS 1)Rationale . The author contends increasing penalties for subsequent loitering offenses will deter gang members from hanging around schools and other public places where children congregate. 2)Suggested Amendments . a) This bill increases the penalty for a first loitering offense for a registered gang member from six months to one year, making subsequent offenses punishable by one year but larger fines. Since the purpose of the bill appears to be to create increased penalties for subsequent offenses, there is no need to increase the penalty for a first offense from six months to one year. (The penalty for first-time loitering for a registered sex offender is six months.) b) This committee has long protected judicial discretion. Conditions of probation are intended to be applied on a case by case basis. While the court may generally attach the conditions required by this bill, it is up to the discretion of the court, and should remain so. Staff suggests deleting the mandatory conditions of probation. 3)Opposition . The CA Public Defenders Association and CA Attorneys for Criminal Justice contend that "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." SB 492 Page 3 Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081