BILL ANALYSIS
AB 1842
Page 1
Date of Hearing: March 23, 2010
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1842 (Gilmore) - As Introduced: February 12, 2010
SUMMARY : Expands the definition of soliciting or recruiting
another person to participate in a criminal street gang with the
intent that the solicited person participates in a pattern of
criminal street gang activity, as specified, by requiring only
the intent that the person actively participate in a criminal
street gang, as specified.
EXISTING LAW :
1)States 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).]
2)Defines "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).]
3)States any person who solicits or recruits another to actively
participate in a criminal street gang, as defined in existing
law, with the intent that the person solicited or recruited
participate in a pattern of criminal street gang activity, as
specified, or with the intent that the person solicited or
recruited promote, further, or assist in any felonious conduct
by members of the criminal street gang, shall be punished by
imprisonment in the state prison for 16 months, or two or
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three years. [Penal Code Section 186.26(a).]
4)Defines "pattern of criminal gang activity" as the commission
of, attempted commission of, conspiracy to commit, or
solicitation of, sustained juvenile petition for, or
conviction of two or more of the following offenses, provided
at least one of these offenses occurred after the effective
date of this chapter and the last of those offenses occurred
within three years after a prior offense, and the offenses
were committed on separate occasions, or by two or more
persons: assault with a deadly weapon or by means of force
likely to produce great bodily injury; robbery; unlawful
homicide or manslaughter; the sale, possession for sale,
transportation, manufacture, offer for sale, or offer to
manufacture controlled substances; shooting at an inhabited
dwelling or occupied motor vehicle; discharging or permitting
the discharge of a firearm from a motor vehicle; arson; the
intimidation of witnesses and victims; grand theft; grand
theft of any firearm, vehicle, trailer, or vessel; burglary;
rape; looting; money laundering; kidnapping; mayhem;
aggravated mayhem; torture; felony extortion; felony
vandalism; carjacking; the sale, delivery, or transfer of a
firearm; possession of a pistol, revolver, or other firearm
capable of being concealed upon the person; threats to commit
crimes resulting in death or great bodily injury; theft and
unlawful taking or driving of a vehicle; felony theft of an
access card or account information; counterfeiting, designing,
using, attempting to use an access card; felony fraudulent use
of an access card or account information; unlawful use of
personal identifying information to obtain credit, goods,
services, or medical information; wrongfully obtaining
Department of Motor Vehicles documentation; prohibited
possession of a firearm, and; carrying a concealed or loaded
firearm. [Penal Code Section 186.22(e).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The Street
Terrorism Enforcement and Prevention Act (Penal Code
186.20-186.33) provides for a number of penalties and other
remedies to combat the activities of criminal street gangs.
One provision of the Act, Penal Code 186.26, provides a
variety of penalties applicable to gang recruiting.
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"It provides that 'any person who solicits or recruits another
to actively participate in a criminal street gang, as defined
in subdivision (f) of Section 186.22, with the intent that the
person solicited or recruited participate in a pattern of
criminal street gang activity, as defined in subdivision (e)
of Section 186.22, or with the intent that the person
solicited or recruited promote, further, or assist in any
felonious conduct by members of the criminal street gang' is
guilty of a crime punishable by 16 months, 2, or 3 years in
state prison. (Emphasis added.) If the person doing the
solicitation/recruiting threatens another person with physical
violence on two or more separate occasions within any 30-day
period with the intent to coerce, induce, or solicit any
person to actively participate in a criminal street gang, the
offense is punishable by 2, 3, or 4 years in state prison. If
physical force is used to coerce, induct or solicit another
person to actively participate in a criminal street gang or to
prevent the person from leaving a criminal street gang, the
penalty is 3, 4, or 5 years in state prison. If the person
solicited, recruited, or threatened is a minor, an additional
and consecutive term of 3 years is required to be imposed, in
addition to these penalties.
"Subdivision (a) of Penal Code 186.26 places an unnecessarily
difficult proof requirement on the prosecution. Under current
law, it is a crime to 'actively participate' in a criminal
street gang. Although Proposition 21 clarified that it was
not necessary for a court to find that 'the person must devote
all, or a substantial part of his or her efforts to the
criminal street gang' is necessary in order to secure a
conviction under subdivision (a) of Section 186.22 of the
Penal Code, nonetheless, the term 'active participation'
requires more than a casual association with a criminal street
gang. Though it is not necessary to prove that a person is a
'member' (an amorphous term) of a criminal street gang,
'active participation' requires 'involvement with a criminal
street gang in a way that is more than passive or is in name
only.' (See Judicial Council of California, Criminal Jury
Instructions (Fall 2009), Instruction 1400; see, e.g., People
v. Martinez (2008) 158 Cal.App.4th 1324.) It is a crime,
punishable by imprisonment in county jail for up to one year,
or in state prison for 16 months, 2 years, or 3 years in state
prison, to actively participate in a criminal street gang with
knowledge that its members engage in or have engaged in a
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pattern of criminal gang activity and to willfully promote,
further, or assist in any felonious conduct by members of that
gang. (Penal Code 186.22(a).) It is a substantive offense
whose gravamen is the participation in the gang itself.
(People v. Herrera (1999) 70 Cal.App.4th 1456, 1467.)
"Current law defines a criminal street gang as an '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 criminal acts'
enumerated in Penal Code 186.22(e)(1) to (25) and (31) to
(33) 'having a common identifying sign or symbol, and whose
members individually or collectively engage in a pattern of
criminal street gang activity'. A criminal street gang is, by
definition, a criminal organization having as one of its
primary purposes the commission of serious crimes.
"The current requirement for a conviction under subdivision (a)
of Penal Code 186.22 requires not only that the person doing
the recruiting/soliciting intend for the person
recruited/solicited join the gang ('actively participate').
It also requires proof of intent that the person
recruited/solicited 'participate in a pattern of criminal
street gang activity,' as defined.
"Proving that mental state may be difficult for the prosecution.
It is not, for example, a requirement for a conviction under
Penal Code 186.22 to prove that the defendant has
participated in a pattern of criminal street gang activity.
It is only required that the prosecution prove that the
defendant actively participated in a criminal street gang with
knowledge that its members engage in or have engaged in a
pattern of criminal gang activity and that he or she willfully
promoted, furthered, or assisted in felonious criminal conduct
by members of the gang. If a defendant is accused of
recruiting a person to join the criminal street gang, absent
very specific evidence, it may be difficult or impossible to
prove that the person intended for the person recruited engage
in a pattern of criminal street gang activity.
"However, proof that he or she intended that the person
recruited actively participate in the criminal street gang
demonstrates that he or she intended to enlarge the membership
of the criminal organization. This type of
solicitation/recruitment is, by definition, an invitation that
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the person who is recruited will join a criminal enterprise.
Proof of that should be sufficient for criminal penalties to
apply. Proposition 21's addition of Penal Code 186.26 was
designed to prevent and punish gang recruiting. Removing the
additional proof requirement will better effectuate the intent
of the voters without impinging on constitutionally protected
activity. There is no protected right to actively participate
in an ongoing criminal organization. This provision was added
by initiative statute, Proposition 21 of 2000, the 'Gang
Violence and Juvenile Crime Prevention Act.'
"Criminal street gangs are a scourge. They are properly viewed
not as loose collections of youthful hooligans, but as
dangerous, organized criminal enterprises. California needs
to do more to prevent the expansion of this scourge. Giving
prosecutors and law enforcement officers a more effective tool
to prosecute gang recruiting without watering down the strong
penalties adopted by the voters via the passage of Proposition
21, is one step that we can take. This bill will not create a
new crime or increase criminal penalties. It merely provides
for a common-sense definition of criminal street gang
recruiting. When a defendant solicits or recruits a person to
join the criminal street gang that means that the defendant
intended for that person to join a criminal organization.
Additionally, specific proof that the recruiter intended for
the person to commit a 'pattern of criminal gang activity'
should not be required.
"Longstanding criminal law principles permit criminal liability
for criminal solicitation. Here, the conduct involved is
solicitation that the person recruited will join an ongoing
criminal enterprise. It is fair and reasonable to provide for
criminal penalties for this type of criminal solicitation."
2)Recruiting or Soliciting a Minor to Participate in a Criminal
Street Gang : Under existing law, any person who solicits or
recruits another to actively participate in a criminal street
gang with the intent that the person solicited engage in a
pattern of criminal street gang activity or with the intent
that a person solicited promote in any felonious conduct by a
member of a criminal street gang shall be sentenced to state
prison for a term of 16 months, 2 or 3 years. [Penal Code
Section 186.26(a).] A "pattern of criminal gang activity" is
defined as the commission, attempted commission or conspiracy
to commit two or more offenses listed in statute. Such
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offenses include assault, robbery, murder, possession or sale
of drugs, arson, burglary, and extortion. Any person who
recruits a minor to participate in a criminal street gang
shall be sentenced to an additional three years. [Penal Code
Section 186.26(e).] Jury Instructions further define pattern
of criminal gang activity as:
"Pattern of criminal gang activity means the commission or
attempted commission or conviction of two or more of the
specified felonies provided at least one of those crimes
occurred after September 26, 1998 and the last of those crimes
occurred within three years after the a prior offenses, and
the crimes are committed on separate occasions or by two or
more persons." [CALJIC 6.50.]
Arguably, this is a challenging burden of proof for the People
in that the prosecutor must prove: (a) the defendant
solicited or recruited a person; (b) to actively participate,
meaning participate in more than a passive or nominal manner;
(c) in an ongoing organization or association having the
primary intent to commit a specified felony; (d) with the
intent that person commit two or more specified felonies; and,
(e) within the designated timeframe; OR in the alternative,
show the defendant acted with the intent that the solicited
person promote, further or assist in any felonious conduct.
Hence, if Defendant A solicited Person B to join Norte?os with
the intent that Person B assist in, for example, robbing a
liquor store or assaulting a rival gang member, Defendant A is
guilty of Penal Code Section 186.26(a). This statute,
originally added to the Penal Code by the Street Terrorism
Enforcement and Prevention (STEP) Act of 1988, was not
intended to apply to persons who negligently acts, even
criminally, or fails to act, in circumstances that may
contribute to a person participating in a criminal street
gang.
In 1988, the California Legislature enacted the STEP Act. The
STEP Act was specifically aimed at ending gang-related
activity by punishing a broad spectrum of gang-related
conduct. Under this act, an individual who participates in a
criminal gang knowing the gang has or is engaging in a
"pattern of criminal activity" may be punished. An
individual's participation must be active and the gang member
must devote at least a substantial part of his or her time and
effort to the criminal street gang. However, a gang member's
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crimes do not have to benefit, further or relate to the gang.
Rather, the predicate crimes need only occur within three
years of each other and the offenses must be committed on
separate occasions or by two or more persons. The STEP Act
also provides sentence enhancements for felony convictions
committed in furtherance of, or in association with, the gang.
[Bergen Herd. Note: Injunctions as a Tool to Fight
Gang-Related Problems in California after People Ex Rel Gallo
vs. Acuna: A Suitable Solution?, 28 Golden Gate University
Law Review, 629 (1998).]
Proposition 6, the "Safe Neighborhoods Act", appeared on the
November 2008 ballot, received just 30.8% of the vote, and
failed passage. [www.ballotpedia.org/wiki/index
/California_Proposition_6_(2008).] The initiative proposed
several changes to law enforcement funding mechanisms and
statutes related to gang activity. As a general matter,
voters are assumed to know and understand all parts of
circulated initiatives. Page 17 of the defeated initiative
included the same language proposed in this bill. Is it
reasonable to assume that the voters of the State of
California do not approve of this change?
3)Consequence of Changing the Elements of Gang Recruiting :
Penal Code Section 186.22(a) states, "Any person who actively
participates in a 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 in a county jail for a period not to exceed
one year, or by imprisonment in the state prison for 16
months, two or three years." [Penal Code Section 186.22(a).]
Penal Code Section 186.22(f) defines "criminal street gang"
and states, "[A criminal street gang means] 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."
People v. Castenada (2000) 23 Cal.4th 743 (hereinafter
Castenada) defined the term "active participation". Castenada
was a Santa Ana case where two criminal defendants were
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charged with robbery, attempted robbery and active
participation in a criminal street gang. The defendants were
convicted and sentenced to prison. On appeal, the defendant,
Castenada, challenged only the conviction for actively
participating in a criminal street gang claiming insufficient
evidence. [Castenada at 743.] In affirming the conviction,
the California Supreme Court 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". (Castenada at 747.) The
Court further rejected the defendant's argument that his
conviction for actively participating in the criminal street
gang violated his right to due process because he could not
possibly know when he has committed the crime. The Court
stated, "The due process requirement that criminal liability
rest on guilt means simply that a person convicted for active
membership in a criminal organization must entertain 'guilty
knowledge and intent' of the organization's criminal purpose."
(Castenada at 749.) California jury instructions also echo
this definition of "active participant". Relevant portions
instruct the jury that "active participation" is defined as
involvement with a criminal street gang in a way that is more
than passive or in name only. [CALCRIM No. 1400 and 2542 (4th
ed. 2000).]
Amending Penal Code Section 186.26(a) in the manner proposed by
this bill is slightly confusing if the intention is to make
prosecution under the section easier. Under this bill, the
People would have to show that the Defendant A solicited or
recruited Person B to actively participate in a criminal
street gang, meaning more than nominally participate in an
organization having a common symbol and whose primary purpose
is to engage in one of the specified felonies, with the intent
that the solicited person actively participate in a criminal
street gang. It seems duplicative, but presumably the intent
of this language is only to require the Defendant A solicited
or recruited a Person B with the intent that he or she
actively participate in a criminal street gang. It is
arguable that the proposed amendments require both intent that
the person recruited actively participate and that the person
recruited actually participates.
4)Solicitation : It is possible that if a defendant solicits
another to commit a crime, he or she maybe charged with
solicitation. (Penal Code Section 653f.) "Solicitation" is
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defined as offering, accepting, or joining another person in
act with the intent of committing a crime. "Every person who,
with the specific intent that the crime be committed, solicits
another person to commit [or join in the commission of] a
crime, is guilty of solicitation. The crime is complete when
the solicitation is made with the required specific intent,
and the soliciting message is received by the intended
recipient. It is not necessary that the crime solicited be
committed, or that any other overt act be taken toward its
commission." Solicitation must be proved by direct testimony
of two witnesses or by direct testimony of one witness and
corroborating circumstances. [CALJIC 6.35; Laurel vs.
Superior Court (1967) Cal.App. 2nd 292, 297]. Solicitation
with the intent to commit a specified felony is punishable by
up to one year in the county jail or by imprisonment in state
prison for a period of 16 months, two or three years. [Penal
Code Section 653f(a).] This is the same punishment as Penal
Code Section 186.26(a) but requires intent to commit a
specific crime.
5)Contributing to the Delinquency of a Minor : Where the person
solicited to actively participate in a criminal street gang is
a minor, it is possible that he or she may be charged with
contributing to the delinquency of a minor. Existing law
states that any person who acts or omits the performance of a
duty that causes or tends to cause a person under the age of
18 to come under the jurisdiction of juvenile court or commit
a crime that would bring the minor into the jurisdiction of
the juvenile court, he or she may be charged with a
misdemeanor and sentenced to up to one year in the county
jail. [Penal Code Section 272(a).] Soliciting a minor to
become an active participant in a criminal street gang may be
charged as contributing to the delinquency of a minor,
although this section is punishable only by up to one year in
the county jail.
6)Effective Solutions to Gang Violence : Research indicates
people, especially children, join gangs for a variety of
reasons.
"[Researchers] view joining youth gangs as consisting of both
pulls and pushes. Pulls pertain to the attractiveness of the
gang. Gang membership can enhance prestige or status among
friends (Baccaglini, 1993), especially girls (for boys)
(Decker and Van Winkle, 1996), and provide opportunities to be
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with them (Slayton, Stephens, and MacKenna, 1993). Gangs
provide other attractive opportunities such as the chance for
excitement (Pennell et al., 1994) by selling drugs and making
money (Decker and Van Winkle, 1996). Thus, many youth see
themselves as making a rational choice in deciding to join a
gang: They see personal advantages to gang membership
(Sanchez-Jankowski, 1991).
"Social, economic, and cultural forces push many adolescents in
the direction of gangs. Protection from other gangs and
perceived general well-being are key factors (internal
citation omitted). Feeling marginal, adolescents join gangs
for social relationships that give them a sense of identity
(Vigil and Long, 1990). For some youth, gangs provide a way
of solving social adjustment problems, particularly the trials
and tribulations of adolescence (Short and Strodtbeck, 1965).
In some communities, youth are intensively recruited or
coerced into gangs (Johnstone, 1983). They seemingly have no
choice. A few are virtually born into gangs as a result of
neighborhood traditions and their parents' earlier (and
perhaps continuing) gang participation or involvement in
criminal activity (Moore, 1978)." [James C. Howell, Youth
Gangs: An Overview, Office of Juvenile Justice and
Delinquency Programs, Juvenile Justice Bulletin (August 1998)
.]
However, although suppression methods have been the most common
response to gang participation, it has proven the least
effective.
"One of the most influential federally funded research projects
(Spergel and Curry 1993) documented that although suppression
was the dominant response to gangs, it was perceived to be the
least effective. Even among law enforcement respondents in
that study, it was perceived as less effective than providing
social opportunities through job training and education. In
addition, as Malcolm Klein (1995a) noted, little serious
evaluation research has focused on anti-gang suppression
efforts, which suggests that the relationship among Federal
funding, political ideology, and research findings is much
more complicated than might be expected. Indeed, much of the
gang research presented in this volume suggests that simple
predictions from researchers or law enforcement are likely to
be wrong. Research is not motivated by political ideology or a
commitment to a particular outcome, but is conducted because
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there is a pressing need for information to guide
decision-making." [Reed/Decker, Responding to Gangs:
Evaluation and Research, United States Department of Justice,
National Institute of Justice .]
The Advancement Project and the Los Angeles City Council have
released reports on the effectiveness of strategies to reduce
gang violence, specifically in Los Angeles City and County.
In a statement given to the Los Angeles County Education
Coordination Council, Constance Rice, a renowned expert on
studying the most effective methods of combating gang
violence, stated:
"Over the past 10 years, 450,000 children under the age of 18
have been arrested, and 100,000 children have been shot over
the past 30 years. In the past 15 years, 15 law enforcement
officers have lost their lives. In the city of Los Angeles
alone - the scope of our report, 300,000 children are trapped
in gang-saturated zones; 120,000 of them in zones of violence
and live in poverty. Of the 400 gangs and 39,000 gang members
active citywide, between 7% and 8% are persistently violent.
So, we need to focus on protecting children from that smaller
core, and prevent gangs from recruiting more children.
"But we're stuck when mass incarceration is our first and only
response, and nonviolent offenders return to their communities
having learned violence in jail. The research shows the only
thing that will work is a comprehensive, public health-based,
wrap-around strategy that addresses the root causes of
violence. There are effective intervention programs, and the
city, county, and school district together spend a whopping
$958 million a year on the issue, but what's required is a
coordinated, systematic approach with built-in accountability.
There is no one in government whose job is to get kids out of
gangs.
"And wraparound strategies work. Look at the example of the
2003 'Summer of Success.' With $300,000 left over from his
election campaign, plus privately raised matching funds,
former city councilmember Martin Ludlow was able to saturate
'the Jungle,' a battleground for four feuding gangs in his
district, with midnight swimming, midnight soccer, tutoring,
reading programs, hip-hop contests, and other activities. The
idea was simple: violence would decline if youth who normally
only had access to gangs were offered meaningful alternative
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activities scheduled round the clock. During nine weeks of
that summer, local basketball courts stayed open past midnight
for tournaments and games. Youth had paid internships to
conduct outreach to the community.
"Gang intervention workers from the Amer-I-Can collaborative
negotiated with local gangs for safe passage and no violence
agreements. LAPD 'Safer Cities' community police officers
cooperated with the program (but, unfortunately, other LAPD
officers refused to cooperate with the effort). Neighborhood
community groups collaborated to offer computer games,
tutoring, and as many other program opportunities as possible
during the 8:00 p.m. to 3:00 a.m. hours when most of the
violence was occurring. A prominent radio station featured
the program throughout the summer.
"The results were stunning. Murders were reduced to zero, and
every kid in that neighborhood was safe for nine weeks. This
effort demanded the participation of school facilities, the
Department of Water and Power, the recreation and parks
department, and numerous other city and county departments,
and required budgets for overtime, liability agreements,
insurance, and so on, but compared to the value of saving even
one child's life, the price of this program was a huge
bargain.
"Applying a similar strategy throughout the county - while
adding economic development and other services, would
systematize the effort and finally address the public health
emergency that gang violence presents. The community has to
co-pilot this effort, and civic and faith-based funding needs
to be built into it. Los Angeles County, too, needs to make
this happen at the regional level-gangs don't stop at city
limits. This is about their hearts and minds and the way they
think about themselves. And it's about politics. We may know
what to do on a micro level, but this is about systemic,
lasting change." [Constance Rice, statement given to the Los
Angeles County Education Coordination Council (April 27, 2007)
.]
The City of Los Angeles also commissioned the Advancement
Project to submit a report studying why gang reduction
strategies implemented over the past five years have been
unsuccessful. The executive summary stated:
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"The City of Los Angeles has had a violence crisis for over 20
years. Beneath the relative citywide safety and tranquility,
extraordinary violence rages in Los Angeles' high crime zones.
A former World Health Organization epidemiologist who studies
violence as a public health problem concluded that, 'Los
Angeles is to violence what Bangladesh is to diarrhea, which
means the crisis is at a dire level requiring a massive
response'.
"Moreover, Los Angeles is the gang capital of the world.
Although only a small percentage of the City's 700 gangs and
estimated 40,000 gang members engage in routine violence, the
petrie dish of Los Angeles' high crime neighborhoods has
spawned 'a violent gang culture unlike any other . . . . '
The violence from this subset is at epidemic levels: almost
75 percent of youth gang homicides in the State of California
have occurred in Los Angeles County, creating what experts
have concluded is a regional 'long-term epidemic of youth gang
homicide and violence,' to which the City is the major
contributor.
"This epidemic is largely immune to general declines in crime.
And it is spreading to formerly safe middle class
neighborhoods. Law enforcement officials now warn that they
are arriving at the end of their ability to contain it to poor
minority and immigrant hot zones.
"After a quarter century of a multi-billion dollar war on gangs,
there are six times as many gangs and at least double the
number of gang members in the region. Suppression alone - and
untargeted suppression in particular - cannot solve this
problem. Law enforcement officials now agree that they cannot
arrest their way out of the gang violence crisis and that
their crime suppression efforts must be linked to competent
prevention, intervention, and community-stabilizing investment
strategies. This report is about those strategies." [The
Advancement Project, A Call to Action: A Case for a
Comprehensive Solution to LA's Gang Violence Epidemic
(December 29, 2006), Phase III Report, Executive Summary.]
Given the lack of success of simply increasing criminal
penalties for gang activity, perhaps intervention and services
should be considered. The author has characterized gangs as a
"scourge" that are "dangerous, organized criminal
enterprises"; does it make more sense to focus the State's
limited resources to intervention efforts that might prevent a
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young person from joining a criminal street gang rather than
increased punishment for conduct after the fact?
7)Concerns for Prison Overcrowding : This bill changes the
elements of Penal Code Section 186.26(a) seemingly making
prosecution under this section easier and more likely. Given
this is a felony, increased prison commitments may result.
The California Policy Research Center (CPRC) issued a report on
the status of California's prisons. The report stated,
"California has the largest prison population of any state in
the nation, with more than 171,000 inmates in 33 adult
prisons, and the state's annual correctional spending,
including jails and probation, amounts to $8.92 billion.
Despite the high cost of corrections, fewer California
prisoners participate in relevant treatment programs than
comparable states, and its inmate-to-officer ratio is
considerably higher. While the nation's prisons average one
correctional officer to every 4.5 inmates, the average
California officer is responsible for 6.5 inmates. Although
officer salaries are higher than average, their ranks are
spread dangerously thin and there is a severe vacancy rate."
[Petersilia, Understanding California Corrections, CPRC (May
2006).] California's prison population will likely exceed
180,000 by 2010.
According to the Little Hoover Commission, "Lawsuits filed in
three federal courts alleging that the current level of
overcrowding constitutes cruel and unusual punishment ask that
the courts appoint a panel of federal judges to manage
California's prison population. United States District Judge
Lawrence Karlton, the first judge to hear the motion, gave the
State until June 2007 to show progress in solving the
overpopulation crisis. Judge Karlton clearly would prefer not
to manage California's prison population. At a December 2006
hearing, Judge Karlton told lawyers representing the
Schwarzenegger administration that he is not inclined 'to
spend forever running the state prison system.' However, he
also warned the attorneys, 'You tell your client June 4 may be
the end of the line. It may really be the end of the line.'
"Despite the rhetoric, thirty years of 'tough on crime' politics
has not made the state safer. Quite the opposite: today
thousands of hardened, violent criminals are released without
regard to the danger they present to an unsuspecting public.
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Years of political posturing have taken a good idea -
determinate sentencing - and warped it beyond recognition with
a series of laws passed with no thought to their cumulative
impact. And these laws stripped away incentive s for
offenders to change or improve themselves while incarcerated.
"Inmates, who are willing to improve their education, learn a
job skill or kick a drug habit find that programs are few and
far between, a result of budget choices and overcrowding.
Consequently, offenders are released into California
communities with the criminal tendencies and addictions that
first led to their incarceration. They are ill-prepared to do
more than commit new crimes and create new victims . . . . "
[Little Hoover Commission Report, Solving California's
Corrections Crisis: Time is Running Out (2007) pg. 1, 2.]
On January 12, 2010, the Three Judge Panel issued its final
ruling ordering the State of California to reduce its prison
population by approximately 50,000 inmates in the next two
years. [Coleman/Plata vs. Schwarzenegger (2010) No. Civ
S-90-0520 LKK JFM P/NO. C01-1351 THE.] Although this order is
stayed pending appeal to the United States Supreme Court,
careful consideration must be given to any proposal that
exacerbates prison overcrowding.
8)Related Legislation : SB 492 (Maldonado), Chapter 492,
Statutes of 2009, created enhanced penalties for registered
gang members, as specified, to return within 72 hours after
being asked to leave a school property or other public place
at or near where children normally congregate.
9)Prior Legislation : AB 1033 (Caballero), of the 2007-08
Legislative Session, created a misdemeanor, punishable by up
to one year in the county jail; by fine of not more than
$2,500; or by imprisonment and fine for any person who causes
or induces a minor to become a member of a criminal street
gang, as specified
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association
AB 1842
Page 16
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744