BILL ANALYSIS Ó
SB 296
Page 1
Date of Hearing: July 5, 2011
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 296 (Wright) - As Amended: April 7, 2011
SUMMARY : Creates a process whereby a person subject to a gang
injunction can petition for injunctive relief if he or she meets
certain criteria. Specifically, this bill :
1)Makes legislative findings recognizing that:
a) Existing law does not provide a time limit on the
duration of gang injunctions as applied to an individual.
b) Members of the public subject to gang injunctions are
typically low-income persons who cannot afford attorneys.
2)States legislative intent to provide an inexpensive means for
members of the public to have affordable access to the court
to contest and to be removed from some or all of the
provisions of a gang injunction.
3)Allows an individual subject to a gang injunction to petition
the court for an exemption from all or part of an injunction
order, in addition to any other available remedies.
4)Requires the Judicial Council to create a form, by July 1,
2012, for an individual to use to petition for injunctive
relief.
5)Requires the petitioner to specify in the petition whether he
or she seeks an exemption from the entire injunctive order or
only a part thereof.
6)Sets forth certification requirements which must be made by
the petitioner in contents of the petition, including:
a) The individual has not violated any provisions of the
gang injunction.
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b) The individual is not a member of a criminal street gang
subject to the injunction, or a member of any other
criminal street gang.
c) The individual does not have any pending criminal
charges.
d) The individual has not been arrested within the past
three years.
e) The individual has not obtained any gang-related tattoos
within the past three years.
f) The individual has not, within the past three years,
knowingly been documented by law enforcement to have been
in the company or association of another gang member known
by the individual to be covered by the injunction, with the
exception of an immediate family member.
g) The individual is not acting, and agrees not to act, to
promote or assist any activities prohibited by the
injunction.
7)Allows the court to hold an evidentiary hearing on a petition
seeking injunctive relief in order to rule on its merits at
which the petitioner may be required to testify.
8)Limits the filing of a petition for injunctive relief by an
individual to once every three years.
9)Allows the court to charge a petitioner reasonable costs to
file the petition.
10)Requires any prosecuting agency filing an action for a gang
injunction to provide the local office of the public defender
with a copy of the pleading at the time it is filed.
11)Requires that a person served with a gang injunction be
provided the form to petition for injunctive relief.
12)Establishes an effective date of July 1, 2012.
EXISTING LAW :
1)Provides that any building or place used by members of a
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criminal street gang for committing specified felony
offenses is a nuisance subject to an injunction, and for
which damages may be recovered, whether it is a public or
private nuisance. ÝPenal Code Section 186.22a(a).]
2)Allows the Attorney General, or any district attorney, or
any prosecuting city attorney to file an action for money
damages on behalf of the community or neighborhood injured
by the nuisance. ÝPenal Code Section 186.22a(c).]
3)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. ÝPenal Code Section 186.22(f).]
4)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. ÝPenal Code Section 186.22(a).]
5)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 any
felonious conduct by gang members shall receive a specified
sentence enhancement. ÝPenal Code Section 186.22(b).]
6)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 not to exceed one year, or by imprisonment in the state
prison for one, two, or three years. ÝPenal Code Section
186.22(d).]
7)Provides a five-year time limit for a person who has to
register as a gang offender. ÝPenal Code Section
186.32(c).]
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FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Gang
injunctions are a source of community friction with law
enforcement to the extent they name or serve individuals
inaccurately or community members who are no longer gang
members. For poor communities where gang injunctions are
issued the costs to contest the application of an injunction
is prohibitively expensive in terms of legal costs. SB 296 is
designed to at least address the cost issue to allow community
members access to the courts on the service or application of
the order."
2)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. ÝBergen
Herd. Note: Injunctions as a Tool to Fight Gang-Related
Problems in 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
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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. ÝPenal
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. ÝMaxson, 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.]
3)Need for this Bill : Some jurisdictions, such as Los Angeles
and San Francisco, have created an administrative process
whereby a person subject to a gang injunction can seek to opt
out. However, in many jurisdictions, such a process is not
available.
Moreover, research indicates that most gang members remain in a
gang for a relatively short period of time. 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, this 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.
4)Arguments in Support : According to the San Francisco Public
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Defender's Office , "Getting one's name off a gang injunction
can be extremely challenging under current law. Most people
on the list cannot afford an attorney, so very few are able to
contest the matter in court. Their names remain on the list
whether or not they have ever been gang members, hurting their
reputation as well as their chances in employment and
education opportunities.
"SB 296 would allow these individuals - both those mistaken for
gang members and those who have left the gang life behind - to
petition for relief. The legislation's proposed provisions
ensure that any individual challenging the order has led a
crime-free life for at least three years."
5)Arguments in Opposition : According to the California District
Attorneys Association , "As to this bill, it 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 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."
6)Related Legislation : AB 281 (Gorell) increases the penalties
and fines for violation of a gang injunction. AB 281 failed
passage in this Committee and has been granted
reconsideration.
7)Prior Legislation :
a) AB 2632 (Davis), Chapter 677, Statutes of 2010,
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designates a specific gang injunction subsection under the
contempt of court statute for statistical purposes.
b) SB 282 (Wright), of the 2009-2010 Legislative Session,
provided that an individual subject to a gang could
petition the court for relief from the injunction under
specified conditions. SB 282 was amended to become a bill
on an unrelated subject.
c) SB 1126 (Cedillo), Chapter 38, Statutes of 2008,
authorizes the Attorney General, district attorney, or
prosecuting city attorney to collect assets from a criminal
street gang or individual members who knew or should have
known of the unlawful act in order to satisfy a money
damages award in a nuisance abatement action.
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
California Public Defenders Association
California State Conference of the National Association for the
Advancement of Colored People
San Francisco Public Defender
Opposition
California District Attorneys Association
City and County of San Francisco
City Attorney of the City and County of San Francisco
Fresno County District Attorney
Fresno County Sheriff's Office
Los Angeles City Attorney's Office
San Bernardino County Sheriff's Department
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San Bernardino County District Attorney
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744