Amended in Assembly March 21, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 1123

Introduced by Assembly Members Patterson and Nestande

February 22, 2013

An act to amend Section 186.22 of the Penal Code, relating to street gangs.

LEGISLATIVE COUNSEL’S DIGEST

AB 1123, as amended, Patterson. Street gangs.

Existing law begin delete makes end delete begin insert provides that end insert any person who actively participates in any criminal street gang with knowledge that the members of the gang engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, begin insert is guilty of a crime end insert punishable by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or 2 or 3 years.

This bill would begin delete make technical, nonsubstantive changes to that provision end delete begin insert revise and expand the scope of the provision described above to apply to a person who actively participates in a criminal street gang with knowledge that the end insert begin insert gang’s members or active participants engage in or have engaged in a pattern of criminal gang activity, and who (1) commits, alone or in concert, a felony that is one of the gang’s primary activities, as described, (2) aids or abets any felony committed by a member of, or active participant in, that gang, or (3) willfully promotes, furthers, or assists in any felonious criminal conduct by a member of, or an active participant in, that gang. By revising and expanding the scope of a crime, the bill would impose a state-mandated local program end insert .

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The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

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This bill would provide that no reimbursement is required by this act for a specified reason.

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Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program:  begin delete no end delete begin insert yes end insert .

The people of the State of California do enact as follows:

SECTION 1.  

Section 186.22 of the Penal Code, as amended
by Section 2 of Chapter 361 of the Statutes of 2011, is amended
to read:

186.22.  

(a) Any person who actively participates in begin delete any end delete begin insert a end insert
criminal street gang with knowledge that begin delete the end delete begin insert its end insert members begin delete of the
gang end delete begin insert or active participants end insert engage in or have engaged in a pattern
of criminal gang activity, and who begin insert (1) commits, alone or in concert,
a felony that is one of the gang’s primary activities and is set forth
in subdivision (e), (2) aids or abets any felony committed by a
member of, or an active participant in, that gang, or (3) end insert willfully
promotes, furthers, or assists in any felonious criminal conduct by
begin delete members end delete begin insert a member end insert of begin insert , or an active participant in, end insert that gang, shall
be punished by imprisonment in a county jail for a period not to
exceed one year, or by imprisonment in the state prison for 16
months, or two or three years.

(b) (1) Except as provided in paragraphs (4) and (5), 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 criminal
conduct by gang members, shall, upon conviction of that felony,
in addition and consecutive to the punishment prescribed for the
felony or attempted felony of which he or she has been convicted,
be punished as follows:

(A) Except as provided in subparagraphs (B) and (C), the person
shall be punished by an additional term of two, three, or four years
at the court’s discretion.

(B) If the felony is a serious felony, as defined in subdivision
(c) of Section 1192.7, the person shall be punished by an additional
term of five years.

(C) If the felony is a violent felony, as defined in subdivision
(c) of Section 667.5, the person shall be punished by an additional
term of 10 years.

(2) If the underlying felony described in paragraph (1) is
committed on the grounds of, or within 1,000 feet of, a public or
private elementary, vocational, junior high, or high school, during
hours in which the facility is open for classes or school-related
programs or when minors are using the facility, that fact shall be
a circumstance in aggravation of the crime in imposing a term
under paragraph (1).

(3) The court shall order the imposition of the middle term of
the sentence enhancement, unless there are circumstances in
aggravation or mitigation. The court shall state the reasons for its
choice of sentencing enhancements on the record at the time of
the sentencing.

(4) Any person who is convicted of a felony enumerated in this
paragraph 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, upon conviction of that felony, be sentenced to
an indeterminate term of life imprisonment with a minimum term
of the indeterminate sentence calculated as the greater of:

(A) The term determined by the court pursuant to Section 1170
for the underlying conviction, including any enhancement
applicable under Chapter 4.5 (commencing with Section 1170) of
Title 7 of Part 2, or any period prescribed by Section 3046, if the
felony is any of the offenses enumerated in subparagraph (B) or
(C) of this paragraph.

(B) Imprisonment in the state prison for 15 years, if the felony
is a home invasion robbery, in violation of subparagraph (A) of
paragraph (1) of subdivision (a) of Section 213; carjacking, as
defined in Section 215; a felony violation of Section 246; or a
violation of Section 12022.55.

(C) Imprisonment in the state prison for seven years, if the
felony is extortion, as defined in Section 519; or threats to victims
and witnesses, as defined in Section 136.1.

(5) Except as provided in paragraph (4), any person who violates
this subdivision in the commission of a felony punishable by
imprisonment in the state prison for life shall not be paroled until
a minimum of 15 calendar years have been served.

(c) If the court grants probation or suspends the execution of
sentence imposed upon the defendant for a violation of subdivision
(a), or in cases involving a true finding of the enhancement
enumerated in subdivision (b), the court shall require that the
defendant serve a minimum of 180 days in a county jail as a
condition thereof.

(d) 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,
provided that any person sentenced to imprisonment in the county
jail shall be imprisoned for a period not to exceed one year, but
not less than 180 days, and shall not be eligible for release upon
completion of sentence, parole, or any other basis, until he or she
has served 180 days. If the court grants probation or suspends the
execution of sentence imposed upon the defendant, it shall require
as a condition thereof that the defendant serve 180 days in a county
jail.

(e) As used in this chapter, “pattern of criminal gang activity”
means the commission of, attempted commission of, conspiracy
to commit, or solicitation of, sustained juvenile petition for, or
conviction of two or more of the following offenses, provided at
least one of these offenses occurred after the effective date of this
chapter and the last of those offenses occurred within three years
after a prior offense, and the offenses were committed on separate
occasions, or by two or more persons:

(1) Assault with a deadly weapon or by means of force likely
to produce great bodily injury, as defined in Section 245.

(2) Robbery, as defined in Chapter 4 (commencing with Section
211) of Title 8 of Part 1.

(3) Unlawful homicide or manslaughter, as defined in Chapter
1 (commencing with Section 187) of Title 8 of Part 1.

(4) The sale, possession for sale, transportation, manufacture,
offer for sale, or offer to manufacture controlled substances as
defined in Sections 11054, 11055, 11056, 11057, and 11058 of
the Health and Safety Code.

(5) Shooting at an inhabited dwelling or occupied motor vehicle,
as defined in Section 246.

(6) Discharging or permitting the discharge of a firearm from
a motor vehicle, as defined in subdivisions (a) and (b) of Section
12034 until January 1, 2012, and, on or after that date, subdivisions
(a) and (b) of Section 26100.

(7) Arson, as defined in Chapter 1 (commencing with Section
450) of Title 13.

(8) The intimidation of witnesses and victims, as defined in
Section 136.1.

(9) Grand theft, as defined in subdivision (a) or (c) of Section
487.

(10) Grand theft of any firearm, vehicle, trailer, or vessel.

(11) Burglary, as defined in Section 459.

(12) Rape, as defined in Section 261.

(13) Looting, as defined in Section 463.

(14) Money laundering, as defined in Section 186.10.

(15) Kidnapping, as defined in Section 207.

(16) Mayhem, as defined in Section 203.

(17) Aggravated mayhem, as defined in Section 205.

(18) Torture, as defined in Section 206.

(19) Felony extortion, as defined in Sections 518 and 520.

(20) Felony vandalism, as defined in paragraph (1) of
subdivision (b) of Section 594.

(21) Carjacking, as defined in Section 215.

(22) The sale, delivery, or transfer of a firearm, as defined in
Section 12072 until January 1, 2012, and, on or after that date,
Article 1 (commencing with Section 27500) of Chapter 4 of
Division 6 of Title 4 of Part 6.

(23) Possession of a pistol, revolver, or other firearm capable
of being concealed upon the person in violation of paragraph (1)
of subdivision (a) of Section 12101 until January 1, 2012, and, on
or after that date, Section 29610.

(24) Threats to commit crimes resulting in death or great bodily
injury, as defined in Section 422.

(25) Theft and unlawful taking or driving of a vehicle, as defined
in Section 10851 of the Vehicle Code.

(26) Felony theft of an access card or account information, as
defined in Section 484e.

(27) Counterfeiting, designing, using, or attempting to use an
access card, as defined in Section 484f.

(28) Felony fraudulent use of an access card or account
information, as defined in Section 484g.

(29) Unlawful use of personal identifying information to obtain
credit, goods, services, or medical information, as defined in
Section 530.5.

(30) Wrongfully obtaining Department of Motor Vehicles
documentation, as defined in Section 529.7.

(31) Prohibited possession of a firearm in violation of Section
12021 until January 1, 2012, and, on or after that date, Chapter 2
(commencing with Section 29800) of Division 9 of Title 4 of Part
6.

(32) Carrying a concealed firearm in violation of Section 12025
until January 1, 2012, and, on or after that date, Section 25400.

(33) Carrying a loaded firearm in violation of Section 12031
until January 1, 2012, and, on or after that date, Section 25850.

(f) As used in this chapter, “criminal street gang” means any
ongoing organization, association, or group of three or more
persons, whether formal or informal, having as one of its primary
activities the commission of one or more of the criminal acts
enumerated in paragraphs (1) to (25), inclusive, or (31) to (33),
inclusive, of subdivision (e), having a common name or common
identifying sign or symbol, and whose members individually or
collectively engage in or have engaged in a pattern of criminal
gang activity.

(g) Notwithstanding any other law, the court may strike the
additional punishment for the enhancements provided in this
section or refuse to impose the minimum jail sentence for
misdemeanors in an unusual case where the interests of justice
would best be served, if the court specifies on the record and enters
into the minutes the circumstances indicating that the interests of
justice would best be served by that disposition.

(h) Notwithstanding any other provision of law, for each person
committed to the Division of Juvenile Facilities for a conviction
pursuant to subdivision (a) or (b) of this section, the offense shall
be deemed one for which the state shall pay the rate of 100 percent
of the per capita institutional cost of the Division of Juvenile
Facilities, pursuant to Section 912.5 of the Welfare and Institutions
Code.

(i) In order to secure a conviction or sustain a juvenile petition,
pursuant to subdivision (a) it is not necessary for the prosecution
to prove that the person devotes all, or a substantial part, of his or
her time or efforts to the criminal street gang, nor is it necessary
to prove that the person is a member of the criminal street gang.
Active participation in the criminal street gang is all that is
required.

(j) A pattern of gang activity may be shown by the commission
of one or more of the offenses enumerated in paragraphs (26) to
(30), inclusive, of subdivision (e), and the commission of one or
more of the offenses enumerated in paragraphs (1) to (25),
inclusive, or (31) to (33), inclusive, of subdivision (e). A pattern
of gang activity cannot be established solely by proof of
commission of offenses enumerated in paragraphs (26) to (30),
inclusive, of subdivision (e), alone.

(k) This section shall become operative on January 1, 2014.

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begin insert SEC. end insert begin insert 2. end insert   

end insert begin insert

It is the intent of the Legislature in enacting this act
to address the California Supreme Court’s decision in People v.
Rodriguez (2012) S187680 and to ensure that a person who actively
participates in a criminal street gang with knowledge that its
members or active participants engage in or have engaged in a
pattern of criminal gang activity, and who (1) commits, alone or
in concert, a felony that is one of the gang’s primary activities, as
described in the amendments made by this act, (2) aids or abets
any felony committed by a member of, or an active participant in,
that gang, or (3) willfully promotes, furthers, or assists in any
felonious criminal conduct by a member of, or an active participant
in, that gang, may be prosecuted pursuant to subdivision (a) of
Section 186.22 of the Penal Code.

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begin insert SEC. end insert begin insert 3. end insert   

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No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.

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