BILL ANALYSIS
AB 1392
Page 1
Date of Hearing: April 28, 2009
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 1392 (Tran) - As Amended: April 13, 2009
SUMMARY : Establishes the Graffiti and Gang Technology Fund
(GGTF), without regard to fiscal years, for deposit of vandalism
fines, to be continuously appropriated to the Department of
Justice (DOJ) exclusively for the direct and indirect costs of
technological advancements for law enforcement in the
identification and apprehension of vandals and gang members, as
specified. Specifically, this bill :
1)Defines "gang related" to include a person who is an active
participant in a criminal street gang, as specified, or
committed an offense for the benefit of, or at the direction
of, a criminal street gang.
2)Any person who commits a crime of vandalism, as specified, in
addition to any other punishment pay a fine in either of the
following amounts, to be deposited in the Graffiti and Gang
Technology Fund (GGTF):
a) $150; or,
b) $300 if the person is also determined to have committed
a gang-related offense.
3)Requires the court to order a minor or the minor's estate to
pay the fine, as specified, to the extent the court determines
that the minor and the minor's estate have the ability to do
so.
4)States the GGTF shall consist of fines received, as specified,
grants, gifts, and donations or bequests from private sources.
The CalGang Executive Board shall distribute the funds based
on the recommendations of the California Gang Node Advisory
Committee and the California Graffiti Advisory Committee. At
least 30% of the funds for gang-related purposes, any funds
remaining shall be utilized for law enforcement's greater need
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of technology as determined by the CalGang Executive Board.
DOJ may use up to 4% of those remaining funds for
administrative costs, as determined by the CalGang Executive
Board.
5)Requires the DOJ to maintain annual fiscal reports on the GGTF
in a form consistent with generally accepted accounting
principles. And shall prepare an annual report for submission
to the CalGang Executive Board. The report shall be made
available to the public upon request.
6)Requires the annual report prepared by the DOJ shall include
all of the following:
a) The total amount of money deposited into the fund.
b) The amount of money expended from the fund.
c) The amount of money remaining in the fund.
7)States the DOJ may carry over funds deposited in the GGTF
until the time that funds are needed. The CalGang Executive
Board may request funds be saved for a specific need. Records
of these funds shall be available for public review upon
request.
8)Finds and declares the following:
a) There is a present, vital, and growing need to develop
innovative strategies and technological services to
effectively reduce the trauma of graffiti and gang
violence. A Graffiti and Gang Technology Fund is needed to
safeguard the fiscal integrity of cities, counties, cities
and counties, and the state.
b) The Legislature declared criminal street gangs to be a
clear and present danger and menace to public order and
safety in enacting the Street Terrorism Enforcement and
Prevention Act.
c) There is a strong and growing trend of graffiti vandals
becoming more dangerous and developing into criminal street
gangs.
d) Graffiti vandalism is a costly and pervasive problem
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affecting all residents, property owners, businesses, and
public agencies across the state.
e) The California Research Bureau estimates that the
statewide cost of graffiti abatement is potentially upwards
of $350 million annually, the majority of which is borne by
local governments.
f) The overwhelming amount of graffiti vandalism and
gang-related criminal activity far outweighs the resources
available to law enforcement for the identification and
apprehension of these offenders.
g) Law enforcement resources are maximized through
technological advances and the use of shared databases.
Cities and counties that are utilizing graffiti databases,
such as the Cities of Pico Rivera and San Jose, and Orange
County, are making quantum leaps in the identification,
apprehension, and intervention of graffiti vandals. The use
of the most advanced technology is clearly the most
cost-effective and responsible approach available. New
technologies make it possible to hold vandals accountable
for all the vandalism they have done by allowing for the
retention of information related to past vandalism.
h) Graffiti vandalism appears to be a gateway crime for
truancy, trespass, and more dangerous crimes, including
those involving gang activities. Involvement in gangs can
be deadly. It is paramount to intervene with youth as soon
as possible if they have begun to be involved with this
type of criminal activity. The use of the most advanced
technology will help law enforcement identify youth
involvement in criminal activity. Early intervention may
prevent further negative consequences for young vandals,
their families, and communities, as has been the case in
the City of Pico Rivera.
i) It is the intent of the Legislature to maximize scarce
law enforcement resources with the utilization of graffiti
databases, shared intelligence databases, and new
innovative technologies. The Legislature finds that prudent
stewardship and clear necessity mandates the establishment
of the Graffiti and Gang Technology Fund for law
enforcement.
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j) It is the intent of the Legislature to impose fines on
offenders for deposit into the Graffiti and Gang Technology
Fund to support the procurement of new technology to help
eradicate the damage committed by those offenders.
Increased fines for gang-related graffiti are warranted
because of the huge intimidation factor imposed on the
community.
aa) It is the intent of the Legislature in enacting this
bill to safeguard the fiscal integrity of cities, counties,
cities and counties, and the state by providing the
technology needed to maximize law enforcement resources
through the establishment of the Graffiti and Gang
Technology Fund.
EXISTING LAW :
1)Provides that every person who maliciously defaces real or
personal property with graffiti or other inscribed material is
guilty of vandalism, which is punishable as an alternate
felony/misdemeanor. (Penal Code Section 594.)
2)States that if the amount of damage is $400 or more, vandalism
is punishable by imprisonment in the county jail or state
prison not exceeding one year or by a fine of not more than
$10,000. If the amount of damage is $10,000 or more, by a
fine of not more than $50,000 or by both that fine and
imprisonment. [Penal Code Section 594(b)(1).]
3)States that if the amount of damage is less than $400,
vandalism is punishable by imprisonment in a county jail not
exceeding one year; or by a fine of not more than $1,000; or
by both that fine and imprisonment. [Penal Code Section
594(b)(2)(A).]
4)Provides that if the amount of damage is less than $400 and
the defendant has been previously convicted of vandalism or
affixing graffiti or other inscribed material, as specified,
vandalism is punishable by imprisonment in a county jail for
not more than one year; by a fine of not more than $5,000; or
by both that fine and imprisonment. [Penal Code Section
594(b)(2)(B).]
5)Defines "graffiti or other inscribed material" for purposes of
Penal Code Section 594 as including any unauthorized
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inscription, word, figure, mark, or design that is written,
marked, etched, scratched, drawn, or painted on real or
personal property. [Penal Code Section 594(e).]
6)Provides that the court may order any person convicted of
vandalism to perform community service or graffiti removal.
[Penal Code Section 594(f).]
7)Provides that every person who is convicted of vandalism may
be ordered by the court as a condition of probation to perform
community service not to exceed 300 hours over a period not to
exceed 240 days during a time other than his or her hours of
school attendance or employment. (Penal Code Section 594.6.)
8)States any person who defaces with graffiti or other inscribed
material the interior or exterior of the facilities or
vehicles of a governmental entity, as defined by the
Government Code or the interior or exterior of the facilities
or vehicles of a public transportation system as defined by
the Public Utilities Code, or the interior or exterior of the
facilities of or vehicles operated by entities subsidized by
the Department of Transportation or the interior or exterior
of any leased or rented facilities or vehicles for which any
of the above entities incur costs of less than $250 for
cleanup, repair, or replacement is guilty of an infraction,
punishable by a fine not to exceed $1,000 and by a minimum of
48 hours of community service for a total time not to exceed
200 hours over a period not to exceed 180 days, during a time
other than his or her hours of school attendance or
employment. This subdivision does not preclude application of
provisions related to vandalism. [Penal Code Section
640.5(d)(1).]
9)Provides that any person who is violates the graffiti or
vandalism statutes on or within 100 feet of a highway or its
appurtenances is guilty of a misdemeanor, punishable by
imprisonment in a county jail not exceeding six months; or by
a fine not exceeding $1,000; or by both that imprisonment and
fine. A second conviction is punishable by imprisonment in a
county jail not exceeding one year; by a fine not exceeding
$1,000; or by both that imprisonment and fine. (Penal Code
Section 640.7.)
10)Provides that a city, county, or city and county may enact an
ordinance to provide for the use of city or county funds to
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remove graffiti or other inscribed material from publicly or
privately owned real or personal property located within the
city, county, or city and county and to replace or repair
public or privately owned property within that city, county,
or city and county that has been defaced with graffiti or
other inscribed material that cannot be removed cost
effectively. [Government Code Section 53069.3(a).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "There is a
present, vital and growing need to develop innovative
strategies and technological services to effectively reduce
the destruction of gang violence and graffiti crimes. The
Legislature has declared criminal street gangs to be a clear
and present danger to the State of California and spelled out
in great detail their menace in Penal Code Section 186.20 et
seq. There is a strong growing trend for graffiti vandals
becoming more dangerous and many times morphing into criminal
street gang members. Graffiti is a costly and pervasive
problem affecting all residents, property owners, businesses,
and public agencies across the state. The California Research
Bureau estimates that the statewide cost of graffiti abatement
is potentially upwards of $350 million annually. The majority
of these costs are borne entirely by local governments. The
overwhelming number of graffiti vandals and gang member's
criminal acts far outweigh law enforcement's resources for
identification and apprehension.
"Although a majority of California law enforcement agencies
currently use the CALGANG System to track suspected gang
members, there is no dedicated funding to keep this critical
system funded. There is no dedicated funding and no statewide
system to store graffiti crime photos or track graffiti
vandals. Currently, every day our state and every city and
county sends out crews to paint out graffiti, all of which are
crimes. Cities like Pico Rivera, San Jose and counties like
Orange are utilizing individual graffiti databases are making
quantum leaps in identification, apprehension and intervention
of graffiti vandals. Technology is the only mechanism that
allows retention of records of all graffiti done which in turn
enables jurisdictions to identify offenders and hold them
accountable for all their crimes.
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"It is the intent of this bill to maximize our ever depleting
law enforcement resources with the utilization of a shared
graffiti database and innovative technology. Prudent
stewardship and clear necessity mandates the establishment of
the Graffiti & Gang Technology Fund for law enforcement. It
is only fitting that offenders support this technology to help
eradicate the damage they have done. Upon conviction, in
adult or juvenile court, of any graffiti related offense the
offender would pay $150 into the Graffiti & Gang Technology
Fund. Upon a conviction of a gang related offense the
offender will pay $150 into the Graffiti & Gang Technology
Fund. If an offender is convicted of gang graffiti they will
pay $300 Graffiti & Gang Technology Fund.
"Currently, there is no dedicated funding stream to address the
tracking of graffiti or gang crimes and identifying offenders
in our state. Graffiti crimes are becoming more and more
common, and the result is defacement of public and private
property. This costs local governments and private property
owners in repairs that often must be made repeatedly, to keep
properties graffiti free. Although the trends are different
in communities across the state, a majority of graffiti is
connected to criminal street gangs. Graffiti that is not gang
related is often done by 'tagger crews' or individuals whose
intent to put their 'tag' on as much property as possible.
Despite millions of dollars spent on repairing graffiti, there
aren't adequate means of identifying graffiti vandals.
"AB 1392 seeks to address these issues. This bill will require
offenders, upon conviction or adjudication of a graffiti or a
gang offence to pay $150 into a fund that would support the
technology needed to track these crimes and identify
offenders. If an offender was convicted of a gang graffiti
offence the offender would pay $300 to the fund. These
penalties are the maximum penalties assessed, but under
judicial discretion, these penalties may be lowered based on
the offender's ability to pay.
"Coordinated, shared law enforcement technology enables early
identification of youths or adults involved in graffiti or
gang activity. Early intervention is critical to stopping the
destructive path. Intervention with both youth and their
parents is essential; without early identification of
offender, that can't be done."
AB 1392
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2)Penalty Assessments : Fines are subject to penalty
assessments. Assuming a person is fined the maximum fine of
$1,000 under current Penal Code section 640.7, the following
penalty assessments would be imposed pursuant to the Penal
Code and the California Government Code:
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Base Fine: $1,000
Penal Code 1464 Assessment: $1,000 ($10 for every
$10 in fines)
Penal Code 1465.7 Assessment: $ 200 (20%
surcharge)
Penal Code 1465.8 Assessment: $ 20
($20 fee per fine)
Government Code 70372 Assessment: $ 500 ($5 for
every $10 in fines)
Government Code 70373 Assessment: $ 30($30 fee
per each conviction)
Government Code 76000 Assessment: $ 700($7 for every
$10 in fines)
Government Code 7600.5 Assessment: $ 200 ($2 for
every $10 in fines)
Government Code 76104.6 Assessment: $ 100($1 for
every $10 in fines)
Government Code 76104.7 Assessment: $1,000($1 for
every $10 in fines)
Total Fine with Assessments: $4,750
Assuming a person is fined the maximum fine of $5,000 under
current Penal Code section 640.8, the following penalty
assessments would be imposed pursuant to the Penal Code and
the California Government Code:
Base Fine: $ 5,000
Penal Code 1464 Assessment: $ 5,000 ($10 for
every $10 in fines)
Penal Code 1465.7 Assessment: $ 1,000 (20%
surcharge)
Penal Code 1465.8 Assessment: $ 20($20 fee
per fine)
Government Code 70372 Assessment: $ 2,500 ($5 for every
$10 in fines)
Government Code 70373 Assessment: $ 30($30 fee per
each conviction)
Government Code 76000 Assessment: $ 3,500 ($7 for every
$10 in fines)
Government Code 7600.5 Assessment: $ 2,000 ($2 for
every $10 in fines)
Government Code 76104.6 Assessment: $ 500($1 for
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every $10 in fines)
Government Code 76104.7 Assessment: $ 500($1 for
every $10 in fines)
Total Fine with Assessments: $20,050
Assuming the fine is increased under this bill and a $10,000
fine is imposed upon the defendant, the new total fine would
be as follows:
Base Fine: $10,000
Penal Code 1464 Assessment: $10,000($10 for every
$10 in fines)
Penal Code 1465.7 Assessment: $ 2,000(20%
surcharge)
Penal Code 1465.8 Assessment: $ 20($20
fee per fine)
Government Code 70372 Assessment: $ 5,000($5 for every
$10 in fines)
Government Code 70373 Assessment: $ 30($30 fee per
each conviction)
Government Code 76000 Assessment: $ 7,000 ($7 for every
$10 in fines)
Government Code 7600.5 Assessment: $ 2,000($2 for
every $10 in fines)
Government Code 76104.6 Assessment: $ 1,000($1 for
every $10 in fines)
Government Code 76104.7 Assessment: $ 1,000($1 for
every $10 in fines)
Total Fine with Assessments: $38,050
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Assuming the fine is increased under this bill and a $50,000
fine is imposed upon the defendant, the new total fine would
be as follows:
Base Fine: $ 50,000
Penal Code 1464 Assessment: $ 50,000($10 for
every $10 in fines)
Penal Code 1465.7 Assessment: $ 10,000(20%
surcharge)
Penal Code 1465.8 Assessment: $ 20($20
fee per fine)
Government Code 70372 Assessment: $ 25,000($5 for
every $10 in fines)
Government Code 70373 Assessment: $ 30($30
fee per each conviction)
Government Code 76000 Assessment: $ 35,000 ($7 for
every $10 in fines)
Government Code 7600.5 Assessment: $ 10,000($2 for
every $10 in fines)
Government Code 76104.6 Assessment: $ 5,000($1 for
every $10 in fines)
Government Code 76104.7 Assessment: $ 1,000($1 for
every $10 in fines)
Total Fine with Assessments: $186,050
Requiring the defendant to pay an additional $150 or $300 may
seem innocuous, but fines are already considerable. It seems
unlikely the offender will ever be able to pay the total fines
for a conviction.
3)Related Legislation : AB 576 (Torres) creates a mandatory fine
of $50 for all persons convicted of or suffered a sustained
petition for vandalism, as specified, to be placed in the
Graffiti Intelligence and Technology Fund (GITF) in each city
or county where the offense occurred provided the defendant or
juvenile offender have the ability to pay. AB 576 is pending
referral to the Senate.
REGISTERED SUPPORT / OPPOSITION :
Support
None
AB 1392
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Opposition
None
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744