BILL ANALYSIS Ó
SB 296
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SENATE THIRD READING
SB 296 (Wright)
As Amended April 7, 2011
Majority vote
SENATE VOTE :23-15
PUBLIC SAFETY 5-2 APPROPRIATIONS 10-6
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|Ayes:|Ammiano, Cedillo, Hill, |Ayes:|Fuentes, Blumenfield, |
| |Mitchell, Skinner | |Bradford, Davis, Hall, |
| | | |Hill, Lara, Mitchell, |
| | | |Norby, Solorio |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Knight, Hagman |Nays:|Harkey, Charles Calderon, |
| | | |Donnelly, Gatto, Nielsen, |
| | | |Wagner |
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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;
and,
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,
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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 the contents of the petition, including:
a) The individual has not violated any 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 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; and,
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
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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
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.
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.
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.
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.
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.
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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.
7)Provides a five-year time limit for a person who has to
register as a gang offender.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, unknown, likely minor, annual General Fund 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 : 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."
Please see the policy committee analysis for a full discussion
of this bill.
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744
FN: 0001971
SB 296
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