BILL ANALYSIS Ó AB 1491 Page 1 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 AB 1491 Page 2 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 AB 1491 Page 3 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 AB 1491 Page 4 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. AB 1491 Page 5 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 AB 1491 Page 6 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 AB 1491 Page 7 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 AB 1491 Page 8 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, AB 1491 Page 9 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 AB 1491 Page 10