BILL ANALYSIS �
AB 281
Page 1
Date of Hearing: April 12, 2011
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 281 (Gorell) - As Amended: April 6, 2011
SUMMARY : Increases misdemeanor penalties for contempt of court
violations related to civil gang injunctions and increases the
related fines. Specifically, this bill :
1)Provides that a first violation of a gang injunction shall be
punishable by imprisonment in a county jail for not more than
six months, or by a fine not exceeding $1,000, or by both that
imprisonment and fine.
2)Provides that a second violation of a gang injunction shall be
punishable by imprisonment in a county jail for not more than
nine months, or by a fine not exceeding $2,500, or by both
that imprisonment and fine.
3)Provides that a third violation occurring within seven years
of the first violation would be punishable by imprisonment in
a county jail for not more than one year, or by a fine not
exceeding $5,000, or by both that imprisonment and fine.
EXISTING LAW :
1)Provides that the following persons are in contempt of court
and guilty of a misdemeanor:
a) Disorderly, contemptuous, or insolent behavior committed
during the sitting of any court of justice, in the
immediate view and presence of the court, and directly
tending to interrupt its proceedings or to impair the
respect due to its authority.
b) Disorderly, contemptuous, or insolent behavior committed
in the presence of any referee, while actually engaged in
any trial or hearing, pursuant to the order of any court,
or in the presence of any jury while actually sitting for
the trial of a cause, or upon any inquest or other
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proceedings authorized by law.
c) Any breach of the peace, noise, or other disturbance
directly tending to interrupt the proceedings of any court.
d) Willful disobedience of the terms as written of any
process or court order or out-of-state court order,
lawfully issued by any court, including orders pending
trial.
e) Resistance willfully offered by any person to the lawful
order or process of any court.
f) The contumacious and unlawful refusal of any person to
be sworn as a witness or, when so sworn, the like refusal
to answer any material question.
g) The publication of a false or grossly inaccurate report
of the proceedings of any court.
h) Presenting to any court having power to pass sentence
upon any prisoner under conviction, or to any member of the
court, any affidavit or testimony or representation of any
kind, verbal or written, in aggravation or mitigation of
the punishment to be imposed upon the prisoner, except as
provided, as specified. �Penal Code Section 166(a).]
2)Allows every building or place used by members of a criminal
street gang for the purpose of the commission of a felony 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 any criminal conduct, or any offense
involving dangerous or deadly weapons, burglary, or rape, and
every building or place wherein or upon which that criminal
conduct by gang members takes place, is a nuisance to be
enjoined, abated, and prevented, and for which damages may be
recovered, whether it is a public or private nuisance. �Penal
Code Section 186.22a(a).]
3)Provides any person who is convicted of a public offense
punishable as a felony or a misdemeanor, which is 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 any criminal conduct by gang
members, shall be punished by imprisonment in the county jail
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not to exceed one year, or by imprisonment in the state prison
for one, two, or three years, provided that any person
sentenced to imprisonment in the county jail shall be
imprisoned for a period not to exceed one year, but not less
than 180 days, and shall not be eligible for release upon
completion of sentence, parole, or any other basis, until he
or she has served 180 days. If the court grants probation or
suspends the execution of sentence imposed upon the defendant,
it shall require as a condition thereof that the defendant
serve 180 days in a county jail. �Penal Code Section
186.22(d).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Gang
injunctions are highly useful tools for prosecutors inasmuch
as they can enjoin the very behaviors that constitute the
bread and butter of the gang itself, such as association with
other gang members, drug possession and sales, possession of
firearms and many others. However, the utility of gang
injunctions would be enhanced if there were stiffer penalties
for the gang members who violate them, especially those who do
so repeatedly. To the extent we deter and prevent the root
activities of a gang, we have a better chance to avoid the
dangerous and harmful results their actions ultimately have on
our communities."
2)Background : According to background provided by the author,
"According to the Los Angeles County Sheriff's Department
Homicide Bureau, 42% of all homicides in Los Angeles County
are gang-related. Los Angeles law enforcement officials are
aware of more than 1300 street gangs with over 175,000 gang
members in the FBI Los Angeles' seven-county area of
responsibility (San Luis Obispo, Santa Barbara, Ventura, Los
Angeles, Riverside, San Bernardino, and Orange). According to
the Governor's Office of Gang and Youth Violence, there were
699 homicides in Los Angeles County in 2009 and 333 of those
homicides were gang-related (almost 50%). Those numbers are
higher than the previous two years, 2008 and 2007. Outside
Los Angeles, approximately one of every four homicides was
gang-related between 2005 and 2009. While this represents
only half the Los Angeles rate, it should be remembered that
in 1981, only 3% of this area's homicides were gang-related.
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According to the CalGrip report to the Legislature (November
2010), the number of gang-related homicides outside Los
Angeles County now virtually equals the number that afflicts
Los Angeles - an extraordinary change given that
three-quarters of all California's gang-related homicides
between 1981 and 2001 took place in Los Angeles. The
migration of gang members from Los Angeles to other regions
has led to a proliferation of these gangs in smaller suburban
and rural areas not accustomed to gang activity.
"Gangs are a major part of the reason why California has not
fared as well as many other states in terms of decreasing
crime rates. Previously convicted felons and gang members
commit the vast majority of gun crimes, including the killing
of peace officers. Gangs have compromised our criminal
justice system, threatening and assaulting victims, witnesses,
and even judges. It is important that state laws and
resources target these types of offenders. AB 281 seeks to
help address this issue by strengthening the penalties on gang
members who violate gang injunctions."
3)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
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
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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.]
4)Litigation Regarding the Lack of Constitutional Protections
for Individuals Subjected to Civil Gang Injunctions :
Individuals subjected to gang injunctions are not provided the
same constitutional protections as those who face civil
procedures. For instance, those enjoined are not provided
counsel in order to challenge their inclusion in the
court-ordered injunction. Often, individuals with no criminal
history who are merely related or associated in some manner to
an alleged gang member (such as a girlfriend or sister) are
included and not provided counsel to challenge the order.
Much litigation surrounding gang injunctions is in the area of
over broadness, vagueness and the lack of due process afforded
those included.
According to the April 4, 2011edition of the San Francisco Daily
Journal (a legal newspaper), "�i]n what is believed to be a
first, a federal judge said Friday she likely would reject a
request for a permanent gang injunction. Ruling in Manuel
Vasquez, et al. v. Tony Rackauckas, et al, Judge Valerie Baker
Fairbank of the Central District said, 'By subjecting
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plaintiffs and those similarly situated . . . to the
enforcement of the order, defendants deprived the plaintiffs
and those similarly situated of their constitutionally
protected liberty or property interests without adequate
procedural protections.' Gang injunctions have become a
popular tool for law enforcement agencies. Civil liberties
advocates say they are often drafted too broadly. The ACLU of
Southern California and Munger, Tolles & Olsen challenged a
gang injunction that was sought by Orange County District
Attorney Tony Rackaukas. People v. Orange Varrio Cypress
Criminal Street Gang, et al., Fairbank issued her tentative on
Friday, after an 11-day trial. The judge did not indicate
when she would issue a formal ruling. Lawyers for the ACLU
declined to comment because the ruling is tentative. Gary C.
Williams, a professor at Loyola Law School and a member of the
board of directors of the ACLU's Southern California chapter,
called the ruling a 'huge victory' and a historical landmark
in a fight the organization has waged for years."
5)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.
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
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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
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
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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'.
"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
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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.)
6)Criminal Contempt, Participation in a Criminal Street Gang and
Bootstrapping : In Lopez v. Superior Court (2008) 160 Cal.
App. 4th 824, Anthony Lopez was arrested for being in the
company of Santa Nita criminal street gang members after 10:00
p.m. while possessing open containers of alcohol, actions
which violated three terms of a court injunction issued to
"abate the public nuisance" of Santa Nita gang conduct. An
indictment issued, charging Lopez with three counts of
contempt �see Penal Code Section 166(a)(4)] of that
injunction, one for each of the three violated terms. In
addition, each count of contempt carried the allegation that
it was committed for "the benefit of, at the direction of, and
in association with . . . a criminal street gang," pursuant to
Penal Code Section 186.22(d). Lopez demurred to the
indictment because that subdivision provides that any person
convicted of the attached crime shall then be punished with
specified minimum terms of imprisonment greater than those
terms otherwise permitted for the crime. In this case, that
subdivision elevated the crime from a misdemeanor to an
alternate felony/misdemeanor, carrying the potential of an
increased felony sentence. Because the factual crux of Penal
Code Section 186.2(d) (gang-related misconduct) was already
the basis for the initial issuance of the injunction, Lopez
argued it should not also be the basis to elevate the current
crime. This dual use of the same fact, Lopez argued, is
"impermissible bootstrapping." �See People v. Arroyas (2002)
96 Cal.App.4th 1439.]
The court agreed. In People v. Briceno (2004) 34 Cal.4th 451,
the California Supreme Court addressed and resolved the issue
of whether any felony to which an enhancement under Penal Code
Section 186.22(b) is attached may qualify as a serious felony
for future enhancement under Penal Code Section 667(a)(1).
Serious felonies are listed in Penal Code Section 1192.7(c),
which includes in Item 28 (added by the passage of Proposition
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21) "any felony offense, which would also constitute a felony
violation of Section 186.22." Briceno argued that could only
mean the single felony of street terrorism under Penal Code
Section 186.22(a). The court rejected this narrow
interpretation, concluding that any felony to which an
enhancement under Penal Code Section 186.22(b) was attached
would thereafter comprise a "serious felony" for later
enhancing purposes. (People v. Briceno, supra, 34 Cal.4th at
pp. 458-459.)
In so holding, the Briceno court rejected the characterization
that this interpretation resulted in double punishment or
bootstrapping because "any felony that is gang related is not
treated as a serious felony in the current proceeding . . . .
" �Id. at 465 (italics added).]
The pertinent point voiced in the Briceno opinion was that the
"same gang-related conduct" cannot be used twice in the same
sentencing scheme without violating the concept of double
punishment for the same act. (People v. Briceno, supra, 34
Cal.4th at p. 465.)
In Lopez's case, the same "gang-related conduct" is being used
first as the violation of the injunction and then used again
to elevate that offense from a straight misdemeanor to the
alternate felony/misdemeanor under Penal Code Section
186.22(d). The actions comprising his violations of the court
order are not criminal in themselves: they only become
criminal because they are gang related. (Lopez v. Superior
Court, supra, 160 Cal. App. 4th at p. 832.) The Lopez court
stated:
"Specifically, Lopez allegedly violated the court order by being
'outside' between the hours of 10:00 p.m. and sunrise, being
found in the company of another gang member while a gang
member, and drinking alcoholic beverages. The district
attorney emphasizes that he is not charged with gang-related
conduct; he is charged with willful disobedience of a lawfully
issued court order. (See Raskin v. Superior Court (1934) 138
Cal.App. 668, 670 �contempt is essentially a crime against the
authority of a court].) Thus, the actual offense with which
he is charged does not, on its face, relate to the same facts
used to elevate the crime under section 186.22, subdivision
(d), i.e., gang-related conduct.
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"Irrespective of this characterization, the injunction was
issued to abate gang-related conduct. It focuses only on
otherwise innocuous acts which are made criminal solely
because they are engaged in by gang members for the benefit of
that gang. And it is those otherwise innocuous acts which
comprise the disobedience of the injunction and the proof of a
gang connection for the enhancing allegation under section
186.22, subdivision (d). Thus, it is 'the same gang-related
conduct �used] again to obtain an additional' form of
punishment (People v. Briceno, supra, 34 Cal.4th at p. 465),
i.e., the elevated designation as a felony." (Ibid.)
Thus, the court held that the prosecution cannot legally
criminalize behavior due to the sole fact that it is gang
related and then increase punishment for that behavior simply
by again alleging the same gang-related fact.
7)Argument in Support : According to the Riverside Sheriffs'
Association , "�g]ang injunctions have become useful tools for
prosecutors, and we agree that they can enjoin the very
behaviors that constitute the bread and butter of the gang
itself.
"The use of gang injunctions can deter gang-related crimes, and
AB 281 implements a system of graduated sanctions for persons
who violate gang injunctions. The first violation is
increased from a maximum of 6 months in jail to a maximum of
one year. The second violation within seven years of a prior
violation would be punishable by not less than 90 days and not
more than a year in the county jail and/or fine of not more
than $2,500, and a third violation within seven years is
additionally maximized.
"The ability to further deter the dangerous activities committed
within a community inhabited by gang members is desirable and
worthy of your support."
8)Argument in Opposition : According to the California Attorneys
for Criminal Justice (CACJ), "�t]his bill would establish
graduated criminal penalties for failure to comply with a
civil gang injunction. Although gang injunctions are used by
some cities, there are a variety of reports that they are the
least effective means to reduce gang violence. Additionally,
district attorneys have been found to inappropriately subject
individuals to gang injunctions; usually this occurs with
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individuals who may be related to gang members but have no
direct history of involvement with the gang. Under current
law, it is quite difficult for someone to get him/herself
removed from the injunction. Consequently, AB 281 would
exacerbate this problem by imposing graduated criminal
sanctions on these same individuals.
"Additionally, the proposed criminal sanctions are likely to be
disproportionate to the underlying activity that violates the
injunction. For example, simply being at the same location
with another person named on the injunction is sufficient to
trigger the misdemeanor penalties in AB 281. There is nothing
inherently criminal about this behavior, especially if it is
simply someone spending time with a family member. Yet, AB
281 could potentially put someone in jail who has never
committed a crime.
"It is also distressing that AB 281 increases penalties for a
CIVIL injunction. There has been contentious litigation
throughout California on whether or not someone subject to the
terms of a gang injunction is entitled to the appointment of a
public defender. The courts have repeatedly denied these
requests citing the civil nature of the injunction. As a
result, many individuals who are named in a gang injunction
never get legal representation.
"The strict criminal penalties in AB 281 (Gorell) violate the
determination that injunctions are wholly civil in nature.
CACJ would argue that if you are going to add these graduated
penalties, that you must also require appointment of a public
defender for the underlying injunction proceedings."
9)Prior Legislation :
a) AB 2632 (Davis), Chapter 677, Statutes of 2010,
designates a specific gang injunction subsection under the
contempt of court statute for statistical purposes.
b) SB 492 (Maldonado), Chapter 592, Statutes of 2009,
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.
c) AB 104 (Solorio), Chapter 104, Statutes of 2007,
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clarifies prosecuting city attorneys seeking civil gang
injunctions and drug abatement orders, as specified, may
have access the Department of Justice's state and local
summary criminal history information.
d) SB 271 (Cedillo), Chapter 34, Statutes of 2007,
authorizes any prosecuting city attorney regardless of the
population size of the city to maintain an action for
monetary damages in cases where gang activity has been
found to constitute a nuisance, as specified.
e) SB 167 (Hayden), of the 1999-2000 Legislative Session,
would have required the appointment of counsel for indigent
defendants in gang nuisance civil injunction litigation.
SB 167 failed passage on the Senate Floor.
REGISTERED SUPPORT / OPPOSITION :
Support
Association for Los Angeles Deputy Sheriffs
California District Attorneys Association
Los Angeles Police Protective League
Los Angeles Probation Officers' Union
Oxnard Police Department
Riverside Sheriffs' Association
Santa Barbara Office of the Sheriff
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Friends Committee on Legislation of California
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744