BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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9
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SB 296 (Wright)
As Introduced February 14, 2011
Hearing date: March 22, 2011
Penal Code
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PETITIONS FOR EXEMPTION OR RELEASE FROM GANG INJUNCTIONS
HISTORY
Source: Author
Prior Legislation: SB 1126 (Cedillo) - Ch. 38, Stats. 2008
SB 282 (Wright) - amended to become bill on
unrelated subject, 2009
Support: California Public Defenders Association
Opposition:California District Attorneys Association
KEY ISSUES
SHOULD A HEARING PROCESS BE ESTABLISHED TO ALLOW A PERSON WHO IS
SUBJECT TO A GANG INJUNCTION TO OBTAIN FULL OR PARTIAL RELIEF OR
EXEMPTION FROM THE INJUNCTION?
SHOULD THE PERSON SEEKING FULL OR PARTIAL EXEMPTION FROM A GANG
INJUNCTION BE REQUIRED TO ESTABLISH THAT HE OR SHE IS NOT IN A GANG,
DOES NOT SUPPORT ACTIVITY PROHIBITED BY THE INJUNCTION, AND HAS NOT,
WITHIN THE PAST THREE YEARS, OBTAINED A GANG TATTOO, BEEN ARRESTED
OR HAVE BEEN DOCUMENTED BY LAW ENFORCEMENT TO HAVE ASSOCIATED WITH
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GANG MEMBERS?
PURPOSE
The purposes of this bill are to 1) establish a process whereby
a person subject to a gang injunction can petition for a hearing
for exemption or relief from the injunction in whole or in part,
and 2) require that the person seeking relief establish that he
or she is not a gang member, has not supported acts prohibited
by the injunction, and has not within three years obtained gang
tattoos, been arrested or been documented to have associated
with gang members.
Gang Statutes Generally - Definition of a Street Gang,
Penalties
Existing law defines a "criminal street gang" as any ongoing
organization, association, or group of three or more persons .
. . having as one of its primary activities the commission of
one or more enumerated offenses, having a common name or
identifying sign or symbol, and whose members engage in a
pattern of gang activity. (Pen. Code § 186.22, subd. (f).)
Existing law provides that any person who actively participates
in a criminal street gang with knowledge that its members engage
in or have engaged in a pattern of criminal gang activity and
who promotes, furthers, or assists in any felonious conduct by
members of the gang, is guilty of an alternate
felony-misdemeanor. (Pen. Code § 186.22, subd. (a).) Existing
law does not specifically define what constitutes being a gang
member.
Existing law provides that any person who is convicted of a
felony 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 criminal conduct by
gang members, shall receive a specified sentence enhancement or
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specified life term. These penalties range from a triad of 2,
3, or 4 years, to a life term with a minimum term of 15 years.
(Pen. Code § 186.22, subd. (b).)
Existing law provides that any person who is convicted of
either a felony or misdemeanor that 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 for up to
one year, or by 1, 2, or 3 years in state prison. (Pen. Code §
186.22, subd. (d).)
Existing law defines "pattern of criminal gang activity" as the
commission of two or more of enumerated offenses, provided at
least one of the offenses occurred after the effective date of
the statute and the last of the offenses occurred within three
years after a prior offense, and the offenses were committed on
separate occasions, or by two or more persons. (Pen. Code §
186.22, subd. (e).) These offenses need not result in a
conviction, although prosecutors typically prove the pattern
through prior convictions.
Existing Law on Nuisances Generally as Applied to Gangs
Existing California Supreme Court decisions state that the
"touchstone of the public nuisance doctrine" is the "notion of
the community and its collective values." (People ex. rel Gallo
v. Acuna (1997) 14 Cal.4th 1090, 1109.)
Existing decisional law holds that individual gang members can
be enjoined from creating a nuisance through such acts as
intimidating the public and associating in public view with
other known gang members in a specified geographic area.
(People ex. rel Gallo v. Acuna, supra, 14 Cal.4th 1090, 1110,
1117.)
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Existing decisional law provides "ÝF]or the purposes of a gang
injunction an active gang member . . . participates in or acts
in concert with an ongoing . . . association or group of three
or more persons, whether formal or informal, having as one of
its primary activities the commission of acts constituting the
enjoined public nuisance, having a common name or . . . symbol
and whose members individually or collectively engage in the
acts constituting the enjoined public nuisance. The
participation or acting in concert must be more than nominal,
passive, inactive or purely technical." (People v. Englebrecht
(2001) 88 Cal.App.4th 1236, 1261, italics added.)
Existing criminal law defines a nuisance as anything injurious
to health, indecent, or offensive to the senses, or an
obstruction to the free use of property, so as to interfere with
the enjoyment of life or property by a community, neighborhood,
or considerable number of persons. A nuisance is also anything
that obstructs the passage or use of any navigable waters, or
any public place or highway. Maintaining a nuisance is a
misdemeanor. (Pen. Code §§ 370, 372.)
Existing Law Concerning Gang Injunctions and Related Damage
Claims
Existing law provides that any building or place used by members
of a criminal street gang for committing specified felony
offenses is a nuisance subject to an injunction. (Pen. Code §
186.22a.) The action for injunction may be brought by the
county district attorney in the name of the people, by the city
attorney, or any private person. (Pen. Code § 186.22a, subd.
(a).)
Existing law , with specified exceptions, provides that the
controlled substance nuisance abatement law (Health & Saf. Code
§ 11570 et seq) shall apply to gang nuisance actions brought
under subdivision (a) of Penal Code Section 186.22a. (Pen. Code
§ 186.22a, subd. (b).) In controlled substance injunctions, the
court can close a building or order the owner to pay damages and
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a civil penalty. (Health & Saf. code § 115811.)
Existing law provides that the Attorney General, city or
district attorney, upon issuance of an injunction pursuant to
Penal Code Section 186.22a to abate gang activity constituting a
nuisance, or pursuant to the general nuisance abatement
provisions in Civil Code Section 3479, may seek damages on
behalf of the community injured by the nuisance. The recovered
damages shall be deposited into a fund for payment to the
governing body in whose political subdivision the affected
community is located, for use solely for the benefit of the
community that has been injured by the nuisance. (Pen. Code §
186.22a.)
Existing law provides that the facts establishing a gang
nuisance, and thus the facts authorizing a gang injunction, must
be proved by clear and convincing evidence. (People v.
Englebrecht (2001) 88 Cal.App.4th 1236.)
Existing law provides that damages for a gang nuisance "shall be
paid by or collected from assets of the criminal street gang or
its members." However, "only members of the criminal street
gang who created, maintained or contributed to the creation or
maintenance of the nuisance shall be personally liable to
payment of the damages awarded." (Pen. Code § 186.22a, subd.
(c).)
Obtaining Relief from a Gang Injunction Provision: This Bill
This bill provides that a person subject to a gang injunction,
in addition to any other available remedies, may petition the
court for exemption from all or part of the injunction.
This bill provides that the petition shall state whether the
petitioner seeks exemption from all or part of the injunction.
This bill provides that the petitioner shall certify, under
penalty of perjury, all of the following:
The petitioner has not violated any provision of the
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injunction of which he or she had notice.
Petitioner is not a member of any gang , and
particularly the gang subject to the injunction.
Petitioner has no pending criminal charges.
Petitioner has not been arrested within three years of
filing the petition.
Petitioner has not obtained any gang tattoos in the
previous three years.
Petitioner has not, in the previous three years,
knowingly been documented by law enforcement agency to have
associated with or been in the company of any gang member
subject to the injunction, except immediate family members.
Petitioner will not promote or assist any activities
prohibited by the injunction.
This bill provides that the court may hold an evidentiary
hearing on the petition and the court may receive any evidence
relevant to the matter.
This bill provides that service of notice of a gang injunction
shall include a copy of the form for a petition for relief from
the injunction.
This bill provides that a prosecuting agency filing an action
for a gang injunction shall provide a copy of the filing to the
office of the public defender.
This bill includes legislative findings and declarations
relating to gang injunctions, as specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
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control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
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In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill , as will be amended by the author in committee, <1>
does not appear to aggravate the prison overcrowding crisis
described above.
COMMENTS
1.Need for This Bill
According to the Author:
Current law does not provide for any set term when it
comes to gang injunctions as applied to an individual.
The reality is most individuals generally cannot
afford an attorney so very few contest the initial
court proceeding and thereafter can theoretically be
subject to the injunction until they die. This is
irrespective of whether they still are, or in fact
ever were, a member of a gang.
This practice goes beyond any reasonable law
enforcement approach. Since the typical scope of a
gang injunction prohibits a number of legitimate
activities such as visiting or being present in
certain locations or associating with particular
individuals, such restrictions may be very onerous and
prevent an individual, for example, from even visiting
a relative etc. etc. There is no uniform, inexpensive
way to be removed from the list and the onus should
not be on the individual to incur those costs.
2. Process to Obtain Relief From Gang Injunctions Likely Applies
Only to Injunctions Issued Pursuant to Penal Code Section
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<1> See comment 4.
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186.22a, not Those Issued Pursuant to Civil Code Section 3479
Penal Code Section 186.22a authorizes and defines gang nuisance
injunctions under certain circumstances. That section also
authorizes a prosecutor to maintain a civil action for damages
caused by the enjoined nuisance activity. The action for
damages can be based on an injunction issued pursuant to Penal
Code Section 186.22a or Civil Code Section 3479.
Committee research on prior bills found that many gang
injunctions are issued under the general nuisance abatement and
injunction provisions in Civil Code Section 3479, not Penal Code
Section 186.22a. Thus, a process for relief from an injunctions
imposed pursuant to Penal Code Section 186.22a may have
relatively little effect on the length of gang injunctions in
practice.
3. Background: Research Indicates That Most Gang Members Remain
in a Gang for a Relatively Short Period of Time
Popular culture includes many references to the idea that a gang
member is a gang member for life. Research does not support
that assumption. Malcolm Klein, a long-time gang researcher and
a (now retired) faculty member at the University of Southern
California, has published numerous books and articles on gangs
in Los Angeles and around the world. Klein's most recent work -
written with Cheryl Maxson of the University of California,
Irvine - summarizes hundreds of gang studies. Klein and Maxson
conclude: "Most gang members do not remain gang members;
membership is a transitory status." A major study released in
2004 concluded that more than half of youths who join gangs
sever those ties within one year." (Klein and Maxson, Street
Gang Patterns and Policies (2006) Oxford Univ. Press, pp.
153-154.)
On March 23, 2009, the Assembly Public Safety Committee held a
hearing on gang activity in California. Paul Seave, the then
Governor's Director of Gang and Youth Violence Policy, testified
that the average gang member leaves the gang within a year.
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4. Penalty of Perjury to be Removed
The author intends to amend this bill to strike the new perjury
provision in this bill.
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