BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 296
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          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