BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 296|
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THIRD READING
Bill No: SB 296
Author: Wright (D)
Amended: 4/7/11
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-2, 03/22/11
AYES: Hancock, Calderon, Liu, Price, Steinberg
NOES: Anderson, Harman
SENATE APPROPRIATIONS COMMITTEE : 6-2, 05/26/11
AYES: Kehoe, Alquist, Lieu, Pavley, Price, Steinberg
NOES: Walters, Runner
NO VOTE RECORDED: Emmerson
SUBJECT : Petitions for exemption or release from gang
injunctions
SOURCE : Author
DIGEST : This bill establishes 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 requires 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.
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ANALYSIS : Existing law provides for injunctive relief
from the unlawful activities of criminal street gangs, the
duration of which is within the court's discretion.
Existing law provides for injunctive relief from a person
who engages in harassment, as specified, of a duration of
not more than three years, and provides that, at any time
within the three months before the expiration of the
injunction prohibiting harassment, the plaintiff may apply
for a renewal of that injunction by filing a new petition.
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 state all of
the following:
The petitioner has not violated any provision of
the injunction enjoining criminal street gang activity
as a nuisance 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.
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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. The court may require the
petitioner to testify at the evidentiary hearing.
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 petition for exemption may be
filed no more than once in a three year period. The
petitioner is required to provide notice of th filing of
the petition to any prosecuting agency that filed the
action for the injunction.
This bill authorizes the court to charge the petitioner for
reasonable costs of filing the petition.
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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 2011-12 2012-13 2013-14 Fund
Evidentiary hearings Unknown,
potentially major costs General*
beginning in 2012-13; dependent on
the number and duration of hearings,
offset to a degree by filing fee
revenue
Development of petition Minor,
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absorbable General*
form
*Trial Court Trust Fund
SUPPORT : (Verified 5/26/11)
California Public Defenders Association
NAACP, California Chapter
San Francisco Public Defender
OPPOSITION : (Verified 5/26/11)
California District Attorneys Association
City and County of San Francisco, Office of the City
Attorney
County of San Bernardino, Office of the District Attorney,
Gang Injunction Unit
Fresno County Sheriff's Office
Fresno County District Attorney's Office
San Bernardino County Sheriff's Office
ARGUMENTS IN SUPPORT : According to the author's office:
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.
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ARGUMENTS IN OPPOSITION : The California District
Attorneys Association states that this bill, "?is
unnecessary as many injunctions already have provisions
allowing individuals to be removed after a period of
crime-free life and renunciation of both gang membership
and the gang lifestyle. Furthermore, there is nothing in
existing law that precludes an individual who is subject to
a gang injunction from petitioning for removal.
"Additionally, the bill requires that, at the time notice
of an injunction is served on any person, a petition form
developed by the Judicial Council for use by an individual
seeking to be exempt from all or part of an injunction
shall be attached to the documents that are served. Not
only does this bill create the possibility that the
judiciary will face great costs stemming from hearings
granted as a result of this bill, but the measure also
requires the Judicial Council to bear the costs of creating
this form. Perhaps more troubling is the perverse notion
that the gang injunction materials themselves will now be
mandated to include a form whose sole purpose is to relieve
the enjoined from the responsibilities and restrictions
imposed by the injunction.
"As noted above, this bill could impact court caseloads
statewide with petitions for termination. Courts and
prosecutor offices would likely face numerous check-box
petitions for removal, an unacceptable result given the
amount of time and resources that goes into the creation of
the typical gang injunction and the activities and
behaviors they seek to curtail."
RJG:nl 5/27/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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