BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1491


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          Date of Hearing:  April 28, 2015
          Counsel:               Gabriel Caswell


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                                  Bill Quirk, Chair





          AB  
                      1491 (O'Donnell) - As Amended  April 20, 2015




          SUMMARY:  Increases the punishment for supervision of a  
          prostitute from a misdemeanor to an alternate felony/misdemeanor  
          if the defendant is an active member of a gang, regardless of  
          whether or not the supervision was done for the benefit of the  
          gang.  Specifically, this bill:  

          1)Provides that if a person is guilty of supervising a  
            prostitute while being an active participant in a criminal  
            street gang they shall be punished by imprisonment for 16  
            months, two, or three years or by imprisonment in a county  
            jail not to exceed one year, by a fine not to exceed one  
            thousand dollars ($1,000), or by both that fine and  
            imprisonment.

          2)Requires that the defendant shall register as a gang member. 

          EXISTING LAW:  

          1)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, 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  








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            members, shall be punished by imprisonment in a county jail  
            not to exceed one year, or by imprisonment in a 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.  (Pen. Code, § 186.22, subd.  
            (d).)  

          2)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.  (Pen. Code,  §§ 186.20 & 186.21.)

          3)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  
            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.  (Pen. Code, § 186.22, subd. (a).)

          4)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.   
            (Pen. Code § 186.22(b).)

          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  








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            engage in or have engaged in a pattern of criminal gang  
            activity.  (Pen. Code § 186.22, subd. (f).)

          6)Contains provisions for punishing gang-related activity as a  
            conspiracy.  (Pen. Code., § 182.5.)

          7)Criminalizes gang recruitment or solicitation to actively  
            participate in a gang. (Pen. Code, § 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.  (Pen. Code, §§ 186.30 & 186.32.)

          9)Provides that a violation of the registration requirements is  
            a crime.  (Pen. Code, § 186.33.)


          FISCAL EFFECT:  Unknown

          COMMENTS:  

          1)Author's Statement:  According to the author, "Criminal street  
            gangs have been continually evolving new methods to fund gang  
            activities for decades. In recent years, they have  
            increasingly migrated to commercial sexual exploitation as a  
            new source of illicit income. These criminals view human  
            trafficking as a more profitable and lower risk enterprise  
            than drug or weapons trafficking.  While a trafficker can sell  
            a gun or drugs once before investing additional resources to  
            replenish his supply, he can sell the same person over and  
            over.

            "AB 1491 gives discretion to prosecutors to pursue a charge of  
            "supervising a prostitute" as a felony when the crime is found  
            to be conducted by a member of a criminal street gang.  The  
            bill provides the tools necessary to convict perpetrators and  
            keep them behind bars.  This will allow us to deal significant  
            damage to the human trafficking operations of these gangs and  
            help protect the victims of this horrible underground sexual  
            abuse."

          2)The Gang Statute:  Penal Code Section 186.22 has three  








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            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.
          
          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.








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          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  
            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  








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            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  
            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  








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            only.  (See CALCRIM No. 1400.) 
          
          5)Constitutional Considerations:  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 seeks to punish otherwise misdemeanor conduct as a  
            felony, simply because the defendant is a member of a street  
            gang.  The crime in question does not have to meet the  
            statutorily required elements that the conduct be committed at  
            the direction or for the benefit of a criminal street gang.   
            The mere fact that the defendant is alleged to be a member of  
            a criminal gang will be enough to not only elevate the penalty  
            of the offense, but will also require that the defendant  
            register as a gang member.  
            
          6)Argument in Support:  None submitted.  

          7)Argument in Opposition:  According to the American Civil  
            Liberties Union, "AB 1491 would create a new crime for  
            'supervising a prostitute while being an active participant in  
            a criminal street gang.' Under Penal Code section 186.22(d),  
            it is already a crime for a person to commit any offense,  
            including 'supervising a prostitute,' if that offense

               "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 ?.

            "AB 1491 would remove the requirement that the offense was  
            committed for the benefit of and with the specific intent to  








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            promote the street gang. This would effectively making it a  
            crime to simply be a member of a street gang while supervising  
            a prostitute, even if the prostitution-related crime was not  
            committed for the benefit of the gang.

            "AB 1491 goes too far in criminalizing status rather than  
            conduct. The most relevant case on the constitutional limits  
            of criminalizing membership in an organization is Scales v. US  
            (1961) 367 U.S. 203. The court in Scales said:

               "In our jurisprudence guilt is personal, and when the  
               imposition of punishment on a status or on conduct can only  
               be justified by reference to the relationship of that  
               status or conduct to other concededly criminal activity [.  
               . .], that relationship must be sufficiently substantial to  
               satisfy the concept of personal guilt in order to withstand  
               attack under the Due Process Clause of the Fifth Amendment.

            "(Id. at 224-225.) The court stated further:

               "[W]e can perceive no reason why one who actively and  
               knowingly works in the ranks of that organization,  
               intending to contribute to the success of those  
               specifically illegal activities, should be any more immune  
               from prosecution than he to whom the organization has  
               assigned the task of carrying out the substantive criminal  
               act.

            "(Id. at 226-227 [emphasis added].)

            "This is why Penal Code section 186.22(d) requires not just  
            "active participation" in a street gang but also that the  
            crime '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.' By removing this element, AB 1491  
            reduces the culpability requirements for this crime too far.  
            For these reasons, we oppose AB 1491."

          8)Prior Legislation:  

             a)   AB 2590 (Feuer), of the 2007-08 Legislative Session,  








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               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 
          Long Beach Police Officers Association


          Opposition
          
          American Civil Liberties Union 
          California Attorneys for Criminal Justice 
          California Public Defenders Association 
          Legal Services for Prisoners with Children

          Analysis Prepared  
          by:              Gabriel Caswell / PUB. S. / (916) 319-3744













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