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. SB 296 Page 2 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 SB 296 Page 3 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).] SB 296 Page 4 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 SB 296 Page 5 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 SB 296 Page 6 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, SB 296 Page 7 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 SB 296 Page 8 San Bernardino County District Attorney Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744