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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