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  








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            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."









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           Analysis Prepared by  :    Geoff Long / APPR. / (916) 319-2081