BILL ANALYSIS Ó
AB 1123
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Date of Hearing: April 30, 2013
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1123 (Patterson) - As Amended: March 21, 2013
SUMMARY : Abrogates a California Supreme Court case by
redefining the term "criminal conduct by members of a gang" for
the purposes of the crime of active participation in a criminal
street gang. Specifically, this bill :
1)States legislative intent to abrogate the 2012 California
Supreme Court decision in People v. Rodriguez, S187680.
2)Expands the substantive gang offense to apply to a person who
actively participates in a gang with knowledge that its
members or active participants have engaged in a pattern gang
activity, and who:
a) Commits, either alone or with someone else, a specified
felony that is one of the gangs primary activities;
b) Aids and abets any felony committed by a member of, or
active participant in, that gang; or,
c) Willfully promotes, furthers, or assists in any
felonious criminal conduct by a member of, or an active
participant in, the gang.
EXISTING LAW :
1)Enacts the California Street Terrorism Enforcement and
Prevention (STEP) Act which seeks the eradication of criminal
activity by street gangs by focusing upon patterns of criminal
gang activity and upon the organized nature of street gangs,
which together, are the chief source of terror created by
street gangs. (Penal Code Section 186.20 and 186.21.)
2)States that any person who actively participates in any
criminal street gang with knowledge that its members engage in
or have engaged in a pattern of criminal gang activity, and
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who willfully promotes, furthers, or assists in any felonious
criminal conduct by members of 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. [Penal Code Section 186.22(a).]
3)Adds an additional and consecutive term of confinement to the
base term when a person is convicted of a felony committed for
the benefit of, at the direction of, or an association with
any criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members.
[Penal Code Section 186.22(b).]
4)Provides that any person who is convicted of a public offense
punishable as a felony or a misdemeanor, which is committed
for the benefit of a criminal street gang and with the intent
to further criminal conduct by 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. [Penal Code Section 186.22(d).]
5)Defines a "criminal street gang" as 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
existing law 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. [Penal Code Section 186.22(f).]
6)Contains provisions for punishing gang-related activity as a
conspiracy. (Penal Code Section 182.5.)
7)Criminalizes gang recruitment or solicitation to actively
participate in a gang. (Penal Code Section 186.26.)
8)Requires convicted criminal gang offenders to register with
the local chief of police or sheriff within 10 days of release
from custody, as specified. (Penal Code Sections 186.30 and
186.32.)
9)Provides that a violation of the registration requirements is
a crime. (Penal Code Sections 186.33.)
FISCAL EFFECT : Unknown
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COMMENTS :
1)Author's Statement : According to the author, "AB 1123 will
specify that an active gang participant can be prosecuted if
he or she commits a felony that is a primary activity of the
gang, regardless of whether the defendant commits the crime
with another person. This bill is necessary to ensure that
the state has the tools to protect our communities from the
most dangerous gang crimes, including carrying of concealed or
loaded firearms.
"Furthermore, in the wake of realignment we must avoid the
prospect of sending dangerous gang criminals to local jails.
Approving AB 1123 will restore the ability to sentence active
participant felons to prison in certain cases."
2)The Gang Statute : Penal Code Section 186.22 has three
separate charging provisions. First, subdivision (a) of the
statute contains the criminal offense of gang participation.
It prohibits actively participating in a criminal street gang
combined with willfully promoting, furthering, or assisting in
any felonious conduct by members of that gang. The gravamen
of the offense is the "participation in the gang itself."
[People v. Herrera (1999) 70 Cal.App.4th 1456, 1467, fns.
omitted.]
The second provision is an enhancement allegation contained in
subdivision (b)(1). If pleaded and proved, it increases the
sentence for an underlying felony. The allegation is
applicable to any 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."
The third, subdivision (d) of the statute, is an alternate
penalty allegation which technically applies to all felonies
and misdemeanors "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," but whose practical
application is to raise the sentences only for gang-related
misdemeanors.
This bill concerns the substantive crime contained in
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subdivision (a).
3)People v. Rodriguez (2012) 55 Cal.4th 1125 : In Rodriguez, the
California Supreme Court resolved conflicting Court of Appeal
interpretations of Penal Code Section 186.22(a), the
substantive crime of active participation in a criminal street
gang. That subdivision provides in full: "Any person who
actively participates in any criminal street gang with
knowledge that its members 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, 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." [Penal Code Section 186.22(a).] The lower
courts had split on whether the phrase "criminal conduct by
members of that gang" required participation by more than a
single gang member.
In Rodriguez, the defendant, a Norteno gang member, acted alone
in committing an attempted robbery. Among other offenses, he
was convicted of the criminal street gang offense. (People v.
Rodriguez, supra, 55 Cal.4th at pp. 1128-1129.) He appealed
that conviction.
Interpreting the phrase "criminal conduct by members of that
gang," the Court held that the plain meaning of the statute
requires that the conduct in question be committed by at least
two gang members, one of whom may be the defendant if he is a
gang member. (Id. at p. 1132.) The Court noted that
"members" is a plural noun. (Ibid.) Thus, if the defendant
acts alone, he cannot be guilty of violating subdivision (a).
The statute requires at least two perpetrators whose felonious
conduct benefits the gang.
This Court noted that requiring that a defendant commit the
underlying felony with at least one other gang member reflects
the Legislature's attempt to avoid "any potential due process
concerns that might be raised by punishing mere gang
membership." [Id. at p. 1133, citing Scales v. United States
(1961) 367 U.S. 203.] Penal Code Section 186.22(a) imposes
criminal liability not for lawful association, but only when a
defendant actively participates in a criminal street gang
while also acting with guilty knowledge and intent. By
requiring that a defendant commit an underlying felony with at
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least one other gang member, the Legislature avoided punishing
mere gang membership. (Id. at p. 1134.) Use of the plural
word "members" reflects the Legislature's attempt to provide a
nexus between the felonious conduct and the gang activity to
satisfy due process. (Id. at p. 1135.)
The Court also relied heavily on its earlier opinion in People
v. Albillar (2010) 51 Cal.4th 47, which interpreted the gang
enhancement in subdivision (b) to distinguish the two
provisions. The substantive offense, unlike the enhancement,
does not require a specific intent to promote the gang, but
rather only knowledge of the gang's pattern of criminal
activity. And the enhancement, unlike the substantive
offense, requires that the underlying felony be gang related.
(Id. at pp. 1134-1135.) The court emphasized the two
provisions "strike at different things." (Id. at p. 1138.)
The enhancement punishes gang-related conduct, i.e. felonies
committed with the specific intent to benefit, further, or
promote the gang; whereas the substantive offense punishes
gang members who act in concert with other gang members in
committing a felony, regardless of whether the felony is gang
related. (Ibid.)
The Supreme Court noted that a gang member who commits a felony
by himself or herself will not go unpunished. Not only will
that person be convicted of the underlying felony, but he or
she may also be eligible for punishment under the gang
enhancement, which carries a longer term of incarceration than
the substantive gang crime. (Id. at pp. 1138-1139.)
4)Gang Members vs. Active Participants : Under the current
language of the statute, in order to prove the elements of the
substantive offense, the prosecution must prove that
defendant: (a) is an active participant of a criminal street
gang, (b) that he or she had knowledge that its members engage
in or have engaged in a pattern of criminal gang activity, and
(c) he or she willfully promoted, furthered, or assisted in ?
felonious criminal conduct by members of that gang. [People
v. Lamas (2007) 42 Cal.4th 516, 524, italics added.] Thus,
the statute distinguishes between gang members and active
participants.
As to the active participation requirement, that statute says it
is not necessary to prove that the defendant is a member of
the criminal street gang. [Penal Code Section 186.22(i); see
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also In re Jose P. (2003) 106 Cal.App.4th 458, 466.]
The California Supreme Court has previously construed the phrase
"active participation" in Penal Code Section 186.22(a) as
being "some enterprise or activity" in which the defendant's
participation is more than "nominal or passive." [People v.
Castaneda (2000) 23 Cal.4th 743, 747, 749-750; see also In re
Jose P. (2003) 106 Cal.App.4th 458, 466.] California jury
instructions also echo this definition of "active
participant." Relevant portions instruct the jury that
"[a]ctive participation means involvement with a criminal
street gang in a way that is more than passive or in name
only. (See CALCRIM No. 1400.)
This bill changes the subsection's language to capture not only
gang members, but "active participants" in the gang, for two
of the three elements of the offense.
5)Aiders and Abettors : An aider and abettor is one who acts
"with knowledge of the criminal purpose of the perpetrator and
with an intent or purpose of either committing or of
encouraging or facilitating commission of" an offense.
[People v. Beeman (1984) 35 Cal.3d 547, 560.] The California
Supreme Court has long recognized that "a person who violates
section 186.22(a) has also aided and abetted a separate felony
offense committed by gang members." [People v. Castaneda
(2000) 23 Cal.4th 743, 749.]
6)Conviction for Conduct While Acting Alone : Gang membership is
constitutionally protected activity under the First Amendment.
[Dawson v. Delaware (1992) 503 U.S. 159, 163-164.] The
United States Supreme Court has held that mere association
with a group cannot be punished unless there is proof that the
defendant knows of and intends to further its illegal aims.
[Scales v. United States, supra, 367 U.S. 203, 229.]
As the Supreme Court noted in Rodriguez, supra, 55 Cal. 4th
1125, requiring that the defendant commit the underlying
offense together with another gang member provides a nexus to
the gang which avoids punishing mere gang membership. (Id. at
pp. 1133-1134.)
This bill permits conviction of the gang substantive offense
when a gang member who has knowledge that the gang has engaged
in a pattern of criminal activity is the only direct
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perpetrator of the felonious conduct. By deleting the nexus
that avoids punishing mere gang membership, this provision
raises due process concerns. Moreover, it makes common sense
that to be a gang crime the underlying offense should be
committed with another gang member.
This does not mean that a gang-motivated direct perpetrator
acting alone will not be punished. As the Rodriguez court
recognized, this individual can still be punished for the
underlying felony and for the gang enhancement. (People v.
Rodriguez, supra, 55 Cal.4th at p. 1138.)
7)Concerns about Prison Overcrowding : In January 2010, a
three-judge panel issued a ruling ordering the State of
California to reduce its prison population to 137.5% of design
capacity because overcrowding was the primary reason that the
California Department of Corrections and Rehabilitation (CDCR)
was unable to provide inmates with constitutionally adequate
healthcare. [Coleman/Plata vs. Schwarzenegger (2010) No. Civ
S-90-0520 LKK JFM P/NO. C01-1351 THE.] The United State
Supreme Court upheld the decision, declaring that "without a
reduction in overcrowding, there will be no efficacious remedy
for the unconstitutional care of the sick and mentally ill"
inmates in California's prisons. [Brown v. Plata (2011) 131
S.Ct. 1910, 1939; 179 L.Ed.2d 969, 999.] Without changes to
how the prison population was managed, the court decisions
"could have led to arbitrary early release of tens of
thousands of prison inmates." (See Chief Probation Officers
of California Issue Brief, Realignment Perspective, July
2012.)
Realignment has significantly reduced the prison population;
however, it is projected to be insufficient to comply with the
court-ordered population limit. In January 2013, the State
moved to vacate or to modify the population reduction order,
arguing that the reductions made to date are sufficient. On
January 29, 2013, the federal court extended the deadline to
December 2013. However, on April 11, 2013, the federal court
denied the State's motion to vacate or modify the population
reduction order. On that same day, the court also ordered the
State to submit a list of all identified prison population
reduction measures within 21 days.
On April 23, 2013, Martin Hoshino, an undersecretary at CDCR,
testified about the federal court order in this Committee.
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Mr. Hoshino explained that CDCR must submit a plan to reduce
the prison population by May 2, 2013, and thereafter provide
monthly reports to the court. Mr. Hoshino noted that the plan
must be durable and on-going. Mr. Hoshino noted that the
court had threatened to hold officials in contempt of court
for failure to comply. Finally, Mr. Hoshino stated that the
department's gravest concern is any state action that
increases the state's prison population would be suggestive of
the fact that it does not intend to comply with the court's
orders. Thus, prison capacity remains a serious concern.
As noted above, under this bill, the substantive gang crime is
being expanded to include not only the situation where the
gang-member defendant acts together with another gang member
of a gang, but also where the defendant acts alone. Concerns
for prison overcrowding arise because more people will be
subject to prosecution.
8)Argument in Support : The California District Attorneys
Association (the sponsor of this bill), writes, "AB 1123 is
necessary to address a number of issues created by the
Rodriguez decision, not the least of which is restoring the
public policy and Legislative intent that had been in place
for decades that provided that gang members committing gang
crimes represent a clear and present danger as well as a
higher threat to public safety than run-of-the-mill
criminality.
"Additionally, in the wake of realignment, we must avoid the
prospect of sending dangerous gang criminals to local jails.
Approving AB 1123 will restore the ability to sentence active
participant felons to prison in certain cases.
"The court's ruling also makes it nearly impossible to obtain a
prison-punishable felony conviction for a gang member who
carries a loaded or concealed firearm. Surely we can agree
that the state needs appropriate tools to deal with the very
real threat of armed gang members roaming our streets.
"Finally, failing to address the Rodriguez ruling will cause
downstream problems for gang injunctions that protect our
communities because being able to prove the elements of PC
186.22(a) is crucial in efforts to prosecute violations of an
injunction and to maintain the injunction itself."
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9)Argument in Opposition : According to the California Attorneys
for Criminal Justice (CACJ), "The Supreme Court in Rodriguez
deftly deflected and defeated all of the arguments that are
put forth by the proponents of AB 1123. First, the high Court
pointed out that Penal Code sec. 186.22 has been the subject
of much appellate court attention over the past decades.
Specifically, the Court has previously held that Penal Code
sec. 186.22(a), the subject of AB 1123, targets 'any felonious
criminal conduct, not felonious gang-related conduct.'
(Rodriguez at p. 1131. (Emphasis added.) Thus, the statute
in question is already broadly interpreted. Because Penal
Code sec. 186.22(a) applies to any felony conduct that is
willfully promoted, furthered, or assisted even though the
conduct itself need not be gang related, the Legislature used
the language 'by members of that gang' to qualify the scope of
the statute. (Id. at p. 1133. (Emphasis added.) The
supporters of AB 1123 express grave concern about the rampant
behavior of Criminal Street gang members and that unless
Rodriguez is overturned this crime wave will reach tsunami
proportions. However, according to the Rodriguez Court,
'[T]here is nothing absurd in targeting the scourge of gang
members committing any crimes together and not merely those
that are gang related. Gang members tend to protect and
avenge their associates. Crimes committed by gang members,
whether or not they are gang related or committed for the
benefit of the gang, thus pose dangers to the public and
difficulties for law enforcement not generally present when a
crime is committed by someone with no gang affiliation. These
activities, both individually and collectively, present a
clear and present danger to public order and safety . . . .'
(Ibid.)
"The Legislature applies Penal Code sec. 186.22(a) to members
only in order to avoid any potential due process concerns that
might be raised, as would be the case should AB 1123 become
law, by punishing mere gang membership. (Ibid.) To avoid
violating due process of law, Penal Code sec. 186.22(a)
requires that a person commit an underlying felony with at
least one other gang member. It has repeatedly been held by
the United States and California Supreme Courts that mere
membership in a gang is not a crime. Mere association with a
gang cannot be punished without proof that the defendant knew
of and intended to further the gang's illegal aims. The STEP
Act, of which Penal Code sec. 186.22(a) is a part, punishes
active participation in the gang 'only when the defendant
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knows about and specifically intends to further the criminal
activity; or where he knows of the criminal activity and
willfully promotes, furthers, or assists it.' (Rodriguez at
p. 1135) Thus, said the Supreme Court, 'The Legislature ?
recognized the constitutional prohibition against punishing
mere gang membership, and its use of the plural 'members' in
section 186.22(a) reflected the Legislature's attempt to
provide a nexus between the felonious conduct and gang
activity that avoided?' a claim of a denial of due process.
(Ibid.)
"AB 1123's proposal that a gang member may satisfy the statute
simply by committing a felony alone reads out of the statute
the constitutionally-required nexus between the defendant's
conduct and gang activity by requiring that one act with
another gang member. The lone perpetrator argument put forth
in AB 1123 would 'upset the balance chosen by the Legislature
because it eliminates the nexus between a defendant's
felonious conduct and gang activity?.' (Rodriguez at p. 1137)
This very argument was advanced and rejected by the Rodriguez
Court. (Ibid.)
"CACJ also opposes the language in AB 1123 that would introduce
criminal liability under aiding and abetting language into
Penal Code sec. 186.22(a). Aiding and abetting is not
currently included in Penal Code sec. 186.22(a) nor is it
included in Penal Code sec. 186.22(b). This appears to be an
attempt by those upset by the Rodriguez decision to not only
seek to restore what they believe the law previously covered
but add a completely new theory of liability to this decade
-old statute. CACJ finds such a wholesale expansion of the
statute completely without justification."
10)Related Legislation :
a) AB 310 (Alejo) adds South Monterey County and Salinas to
the list of communities with a high incidence of gang
violence that are specifically referenced by the California
Gang, Crime, and Violence Prevention Partnership Program,
and appropriates funds to the Department of Justice to
implement the program. AB 310 is pending hearing by the
Assembly Appropriations Committee.
b) SB 458 (Wright) requires local law enforcement to notify
a minor and the minor's parent or guardian prior to
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designating that minor as a gang member, associate or
affiliate in a shared gang database, or submitting a
document to the Attorney General's Office for the purpose
of designating a person in a shared gang database. SB 458
is pending hearing by the Senate Public Safety Committee.
11)Prior Legislation :
a) AB 2590 (Feuer), of the 2007-08 Legislative Session,
would have revised the definition of "criminal street gang"
and "active participant" for the purposes of the STEP Act.
AB 2590 was held on the Assembly Appropriations Committee's
Suspense File.
b) Proposition 21, of the March 7, 2000 election, enacted a
number of public safety provisions, including several gang
provisions. Proposition 21 increased penalties for
gang-related crimes, created a new crime of conspiracy
related to gang activity, and required registration for
adults and minors who have been convicted of participation
in a street gang, or where the gang enhancement was found
to be true.
c) SB 1555 (Robbins), Chapter 1256, Statutes of 1987, and
AB 2013 (Moore), Chapter 1242, Statutes of 1877, both
enacted the STEP Act. Both bills were signed by the
Governor on the same day, but SB 1555 was chaptered last.
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association (Sponsor)
San Bernardino County Sheriff's Office
San Diego County District Attorney
Opposition
American Civil Liberties Union of California
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
Taxpayers for Improving Public Safety
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Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744