BILL ANALYSIS Ó
SB 296
Page 1
Date of Hearing: August 17, 2011
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
SB 296 (Wright) - As Amended: April 7, 2011
Policy Committee: Public
SafetyVote:5-2
Urgency: No State Mandated Local Program:
No Reimbursable:
SUMMARY
This bill creates a process, effective July 1, 2012, whereby a
person subject to a gang injunction can petition for injunctive
relief pursuant to specified criteria. Specifically, this bill:
1)Authorizes 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.
2)Requires the Judicial Council to create a form to petition for
injunctive relief.
3)Specifies requirements that must be addressed by the
petitioner in the petition, including:
a) The individual has not violated provisions of the gang
injunction.
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 has no pending charges and has not been
arrested within three years.
d) The individual has not, in the past three years, been
documented by law enforcement to have been in the company
of another gang member known by the individual to be
covered by the injunction, with the exception of an
immediate family member.
4)Authorizes the court to hold an evidentiary hearing on a
petition seeking injunctive relief.
SB 296
Page 2
5)Requires a person served with a gang injunction be provided
the form to petition for injunctive relief.
6)Limits the filing of a petition for injunctive relief by an
individual to once every three years.
7)Allows the court to charge a petitioner for the reasonable
costs of filing the petition.
FISCAL EFFECT
Unknown, likely minor, annual GF cost pressure on the state
trial courts to the extent the authorization to pursue
injunctive relief is pursued by individuals, and heard by the
courts. This bill does not require courts to hold evidentiary
hearings. While this proposal could add to the courts' caseload
and generate additional pressure to fund increased caseload, the
courts are not funded on a caseload basis. Therefore it is
unlikely this bill will result in direct costs.
Costs to the Judicial Council to develop a form are absorbable.
COMMENTS
1)Rationale . The author's intent is to provide individuals
without the means to hire an attorney and file a writ, a
process to get out from under a misapplied gang injunction.
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 . Local governments may serve injunctions on
gang members to prohibit congregation in a certain area. Gang
injunctions are filed in civil court where the judge has
discretion to issue a preliminary or permanent injunction
prohibiting 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
SB 296
Page 3
before the injunction may be enforced. Offenders can be
prosecuted in either civil or criminal court for violating an
injunction.
3)Support . According to the San Francisco Public 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."
4)Opposition . According to the California District Attorneys
Association, "(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 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?. 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."
5)Prior legislation , SB 282 (Wright), 2009-2010, was similar to
SB 296, but after passing the Senate was amended to address an
unrelated subject.
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081
SB 296
Page 4