BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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6
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AB 2632 (Davis) 2
As Amended April 5, 2010
Hearing date: June 15, 2010
Penal Code
JM:mc
GANG INJUNCTIONS:
TRACKING OF CONTEMPT OF COURT VIOLATIONS
HISTORY
Source: Los Angeles County District Attorney
Prior Legislation: AB 104 (Solorio) - Ch. 104, Stats. 2007
SB 271 (Cedillo) - Ch. 34, Stats. 2007
SB 2034 (Lockyer) - Ch. 631, Stats. 1998
Support: California State Sheriffs' Association; Orange County
Employees Association; Sheriff of San Bernardino County
Opposition:None known
Assembly Floor Vote: Ayes 74 - Noes 0
KEY ISSUES
SHOULD THE EXISTING MISDEMEANOR OF CONTEMPT OF COURT BASED ON
VIOLATION OF ANY COURT ORDER INCLUDE A SEPARATE AND SPECIFIC OFFENSE
OF VIOLATION OF A GANG INJUNCTION?
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WOULD SEPARATELY DEFINING VIOLATION OF A GANG INJUNCTION AS A FORM
OF CONTEMPT OF COURT ALLOW PROSECUTORS TO DETERMINE A DEFENDANT'S
GANG BACKGROUND AND ALLOW THE COMMUNITY TO DETERMINE THE EXTENT OF
ENFORCEMENT OF GANG INJUNCTIONS?
PURPOSE
The purpose of this bill is to separately and specifically
define a violation of a gang injunction as contempt of court,
instead of defining such conduct generally as violation of a
court order, in order to allow statistical tracking of gang
injunction violations and to allow prosecutors to fully review a
defendant's background.
Gang Statutes Generally - Definition of a Street Gang,
Penalties
Existing law defines a "criminal street gang" as any ongoing
organization, association, or group of three or more persons .
. . having as one of its primary activities the commission of
one or more enumerated offenses, having a common name or
identifying sign or symbol, and whose members engage in a
pattern of gang activity. (Pen. Code 186.22, subd. (f).)
Existing law provides that 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 promotes, furthers, or assists in any felonious conduct by
members of the gang, is guilty of an alternate
felony-misdemeanor. (Pen. Code 186.22, subd. (a).) Existing
law does not specifically define what constitutes being a gang
member.
Existing law provides that any person who is convicted of a
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 criminal conduct by
gang members, shall receive a sentence enhancement, as
specified immediately below. (Pen. Code 186.22, subd. (b).)
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Felony (other than specified) 2, 3, or 4 years
Serious felony 5 years
Violent felony 10 years
Home invasion robbery life, min. 15 years before
parole eligibility
Carjacking life, min. 15 years
Shooting from vehicle life, min. 15 years
Extortion or witness intimidation life, min. 7 years
Existing law provides that any person who is convicted of
either a felony or misdemeanor that 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,
shall be punished by imprisonment in the county jail for up to
one year, or by 1, 2, or 3 years in state prison. (Pen. Code
186.22, subd. (d).)
Existing law defines "pattern of criminal gang activity" as the
commission of two or more of enumerated offenses, provided at
least one of the offenses occurred after the effective date of
the statute and the last of the offenses occurred within three
years after a prior offense, and the offenses were committed on
separate occasions, or by two or more persons. (Pen. Code
186.22, subd. (e).) These offenses need not result in a
conviction, although prosecutors typically prove the pattern
through prior convictions. The following sets out the list of
"predicate" gang crimes:
(1) Assault with a deadly weapon or by means of force
likely to produce great bodily injury.
(2) Robbery.
(3) Unlawful homicide or manslaughter.
(4) The sale, possession for sale, manufacture, et
cetera, of controlled substances.
(5) Shooting at an inhabited dwelling or occupied motor
vehicle.
(6) Discharging or permitting the discharge of a
firearm from a motor vehicle.
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(7) Arson.
(8) Intimidation of witnesses and victims.
(9) Grand theft, as specified.
(10)Grand theft of any firearm, vehicle, trailer, or vessel.
(11)Burglary.
(12)Rape.
(13)Looting, as defined.
(14)Money laundering.
(15)Kidnapping.
(16)Mayhem.
(17)Aggravated mayhem.
(18)Torture, as specified.
(19)Felony extortion, as defined.
(20)Felony vandalism, as defined.
(21)Carjacking, as defined.
(22)The sale, delivery, or transfer of a firearm.
(23)Possession of a pistol, revolver, or other firearm capable of
being concealed upon the person.
(24)Threats to commit crimes resulting in death or great bodily
injury, as defined.
(25)Theft and unlawful taking or driving of a vehicle.
(26)Felony theft of an access card or account information, as
defined.
(27)Counterfeiting, designing, using, attempting to use an
access card, as defined.
(28)Felony fraudulent use of an access card or account
information, as defined.
(29)Identity theft, as defined and specified.
(30)Wrongfully obtaining Department of Motor Vehicles
documentation, as defined.
(31)Prohibited possession of a firearm in violation of Section
12021.
(32)Carrying a concealed firearm, as specified.
(33)Carrying a loaded firearm, as specified.
Existing law provides: "A pattern of gang activity may be shown
by the commission of one or more of the offenses enumerated in
paragraphs (26) to (30), inclusive, of subdivision (e), and the
commission of one or more of the offenses enumerated in
paragraphs (1) to (25), inclusive, or (31) to (33), inclusive of
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subdivision (e). A pattern of gang activity cannot be
established solely by . . . offenses enumerated in paragraphs
(26) to (30), inclusive, of subdivision (e), alone. (Pen. Code
186.22, subd. (j).)"
Existing law provides that a pattern of criminal gang
activity can be established by a single prior offense and
the crime charged in the current prosecution. (People v.
Gardeley, supra, 14 Cal.4th 605, 625.)
Existing Law on Nuisances Generally
Existing California Supreme Court decisions state that the
"touchstone of the public nuisance doctrine" is the "notion of
the community and its collective values." (People ex. rel Gallo
v. Acuna (1997) 14 Cal.4th 1090, 1109.)
Existing decisional law holds that individual gang members can
be enjoined from creating a nuisance through such acts as
intimidating the public and associating in public view with
other known gang members in a specified geographic area.
(People ex. rel Gallo v. Acuna, supra, 14 Cal.4th 1090, 1110,
1117.)
Existing appellate decisions appear to hold conflicting views
concerning whether a gang can be sued (including for injunctive
relief) as an entity - specifically an unincorporated
association - as opposed to individual members of the gang.
(People v. Colonia Chiques (2007) 156 Cal.App.4th 31; People v.
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Broderick Boys (2007) 149 Cal.App.4th 1506, 1520-1522.)<1>
Existing decisional law provides "[F]or the purposes of a gang
injunction an active gang member . . . participates in or acts
in concert with an ongoing . . . association or group of three
or more persons, whether formal or informal, having as one of
its primary activities the commission of acts constituting the
enjoined public nuisance, having a common name or . . . symbol
and whose members individually or collectively engage in the
acts constituting the enjoined public nuisance. The
participation or acting in concert must be more than nominal,
passive, inactive or purely technical." (People v. Englebrecht
(2001) 88 Cal.App.4th 1236, 1261, italics added.)
Existing criminal law defines a nuisance as anything injurious
to health, indecent, or offensive to the senses, or an
obstruction to the free use of property, so as to interfere with
the enjoyment of life or property by a community, neighborhood,
or considerable number of persons. A nuisance is also anything
that obstructs the passage or use of any navigable waters, or
any public place or highway. Maintaining a nuisance is a
misdemeanor. (Pen. Code 370, 372.)
Existing civil law defines a nuisance in very similar terms to
the definition of a nuisance in the Penal Code. The Civil Code,
however, specifically includes a reference to the illegal
commerce in controlled substances. (Civ. Code 3479.)
Existing law provides that every building or place used for the
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<1> In Gallo, the California Supreme court stated in dicta that
a gang and its individual members (as opposed to individual
members alone) may be enjoined from engaging in nuisance
conduct. It appears that the Supreme Court has not considered
this issue in a more recent case. (People ex rel. Gallo v.
Acuna, supra, 14 Cal.4th at p. 1124.) In Broderick Boys, the
prosecution served a single member of a gang and claimed that
such service constituted valid service on the gang as an
unincorporated association. It is unclear from Broderick Boys
just what would constitute valid service on the gang as an
entity.
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purpose of unlawful acts involving controlled substances is a
nuisance which shall be enjoined, abated, and . . . for which
damages may be recovered, whether it is a public or private
nuisance. (Health & Saf. Code 11570.)
Existing law provides that the district attorney, city attorney,
or citizen may bring "an action" to abate a nuisance and
permanently enjoin any person maintaining it as to any building
or place used to sell, keep, etc., controlled substances.
(Health & Saf. Code 11571.)
Existing law provides that if the court finds that any vacancy
resulting from closure of a property in a controlled substance
nuisance abatement action, the court may, in lieu of closing the
building, order the owner or person allowing drug-related
conduct to occur to pay damages "in an amount equal to fair
market rental value . . . for one year . . . . Damages shall be
paid to the city or county in which the nuisance exists for
purposes of drug abuse prevention and education programs.
(Health & Saf. Code 11581.)
Existing law provides that a court may assess a civil penalty
not to exceed $25,000 against a controlled substances nuisance
defendant. One-half of the civil penalty shall be deposited in
the Restitution Fund, and the other half paid to the city in
which the judgment was entered for the enhancement of nuisance
abatement, if the action was brought by the city attorney or
prosecutor. If the action was brought by a district attorney,
one-half of the penalties shall be paid to the county treasurer.
(Health & Saf. Code 115811.)
Existing Law Concerning Gang Injunctions and Related Damage
Claims
Existing law provides that any building or place used by members
of a criminal street gang for committing specified felony
offenses is a nuisance subject to an injunction. (Pen. Code
186.22a.) The action for injunction may be brought by the
county district attorney in the name of the people, by the city
attorney, or any private person. (Pen. Code 186.22a, subd.
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(a).)
Existing law , with specified exceptions, provides that the
controlled substance nuisance abatement law (Health & Saf. Code
11570 et seq.) shall apply to gang nuisance actions brought
under subdivision (a) of Penal Code Section 186.22a. (Pen. Code
186.22a, subd. (b).)
Existing law provides that the Attorney General, city or
district attorney, upon issuance of an injunction pursuant to
Penal Code Section 186.22a to abate gang activity constituting a
nuisance, or pursuant to the general nuisance abatement
provisions in Civil Code Section 3479, may seek damages on
behalf of the community injured by the nuisance. The recovered
damages shall be deposited into a fund for payment to the
governing body in whose political subdivision the affected
community is located, for use solely for the benefit of the
community that has been injured by the nuisance. (Pen. Code
186.22a.)
Existing law provides that the facts establishing a gang
nuisance, and thus the facts authorizing a gang injunction, must
be proved by clear and convincing evidence. (People v.
Englebrecht (2001) 88 Cal.App.4th 1236.)
Existing law provides that damages for a gang nuisance "shall be
paid by or collected from assets of the criminal street gang or
its members." However, "only members of the criminal street
gang who created, maintained or contributed to the creation or
maintenance of the nuisance shall be personally liable to
payment of the damages awarded." (Pen. Code 186.22a, subd.
(c).)
Criminal Contempt for Violation of a Court Order, Including
Injunctions
Existing law provides that the following conduct constitutes
contempt of court, a misdemeanor:
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Disorderly, contemptuous, or insolent behavior committed
during the sitting of any court of justice, in the
immediate view and presence of the court, and directly
tending to interrupt its proceedings or to impair the
respect due to its authority.
Disorderly, contemptuous, or insolent behavior committed
in the presence of any referee, while actually engaged in
any trial or hearing, pursuant to the order of any court,
or in the presence of any jury while actually sitting for
the trial of a cause, or upon any inquest or other
proceedings authorized by law.
Any breach of the peace, noise, or other disturbance
directly tending to interrupt the proceedings of any court.
Willful disobedience of the terms as written of any
process or court order or out-of-state court order,
lawfully issued by any court, including orders pending
trial.
Resistance willfully offered by any person to the lawful
order or process of any court.
The contumacious and unlawful refusal of any person to
be sworn as a witness or, when so sworn, the like refusal
to answer any material question.
Publication of a false or grossly inaccurate report of
the proceedings of any court. Presenting to any court
having power to pass sentence upon any prisoner under
conviction, or to any member of the court, any affidavit or
testimony or representation of any kind, verbal or written,
in aggravation or mitigation of the punishment to be
imposed upon the prisoner, except as provided, as
specified. (Pen. Code 166, subd. (a).)
This bill specifically provides that willful violation of a gang
injunction that has been lawfully issued by a California court
constitutes contempt of court, a misdemeanor.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
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Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house,
(Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, California "spends more on corrections
than most countries in the world," but the state
"reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
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decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<2>
The court stayed implementation of its January 12, 2010, ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
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<2> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
According to the author:
Many communities would like to measure the
effectiveness of gang injunctions but are often
presented with a lack of accurate, reportable
information. This bill would allow communities to
review specific information related to gang
injunctions. This bill would also provide law
enforcement and the courts with more accurate
information to assist with enforcement efforts and
sentencing.
2. Additional Background From the Sponsor on the Need for a
Specific Form of Contempt of Court based on Gang Injunction
Violations
Penal Code Section 166, subdivision (a)(4), prohibits violation
of any court order and defines such conduct as contempt of
court, a misdemeanor. Within the meaning of this provision, a
"court order" includes family court orders, domestic violence
court order, orders arising from civil law suits, restraining
orders, orders to provide support, and violations of any number
of court orders and injunctions. It also includes violation of
gang injunctions.
When a defendant is convicted of contempt of court under Section
166, subdivision (a)(4), the conviction becomes part of the
defendant's criminal record. However, it cannot be determined
from the record what kind of order the defendant violated.
Prosecutors reviewing defendant's record cannot determine if an
alleged gang member previously violated a gang injunction. The
defendant could have failed to pay a judgment in a business
dispute or failed to pay spousal support.
The creation of a separate code section for violating a gang
injunction will provide valuable information to prosecutors
reviewing possible charges. Arguably, where a defendant's prior
violation of a gang injunction cannot be the basis for a serious
felony allegation in a current case, the defendant's gang
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history could be very important to the prosecutor and the court.
The prosecutor's decision to seek a felony conviction or offer
a plea bargain could be influenced by the defendant's gang
history. The court could find the information valuable in
determining the conditions of probation or the length of a
defendant's incarceration.
The documentation of gang injunction violations will also allow
the community to help track the effectiveness of gang
injunctions in their community, and will allow law enforcement
to accurately answer questions about the number of gang
injunction violation arrests and prosecutions.
3. Use of a Gang Injunction Violation Contempt Conviction in the
Current and Subsequent Prosecutions
Appellate decisions have held that a defendant who is convicted
of what is otherwise the misdemeanor of contempt of court (Pen.
Code 166) can be convicted of a felony if the contempt of
court involves violation of a gang injunction. Such a felony
conviction is allowed because Penal Code Section 186.22,
subdivision (d), provides that where the defendant is convicted
of "any [gang-related] public offenses that is punishable as a
felony or a misdemeanor," the defendant is guilty of an
alternate felony-misdemeanor. Thus, contempt of court for the
violation of a gang injunction can be charged as the felony
version of an alternate felony-misdemeanor. The trial court has
the discretion provided by Penal Code Section 17, subdivision
(d), to deem such offense to be a misdemeanor.
It should be noted that a felony conviction under Penal Code
Section 186.22, subdivision (d), that is based on a contempt of
court conviction for violation of a gang injunction can be
treated as a prior serious felony in a future prosecution.
(Lopez v. Superior Court (People) (2008) 160 Cal.App.4th 824;
People v. Briceno (2004) 34 Cal.4th 451; People v. Arroyas
(2002) 96 Cal.App.4th 1439.) A prior serious felony has
numerous consequences, including rendering the defendant
eligible for sentencing under the Three Strikes law and for a
five-year enhancement if the underlying conviction in a future
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case is a serious felony.
This bill does not, however, change the substantive law.
Regardless of whether or not this bill is enacted, contempt of
court convictions based on violations of gang injunctions can be
treated as serious felony convictions in a future case.
WILL THIS BILL ALLOW THE LEGISLATURE, PROSECUTORS AND OTHER
INTERESTED PARTIES TO DETERMINE HOW MANY PERSONS HAVE BEEN FOUND
IN VIOLATION OF GANG INJUNCTIONS?
WILL THIS BILL ALLOW PROSECUTORS TO MORE EASILY AND QUICKLY
DETERMINE THAT A DEFENDANT HAS BEEN PREVIOUSLY CONVICTED OF A
GANG-RELATED CONTEMPT OF COURT, PARTICULARLY WHERE THE PRIOR
CASE DID NOT INVOLVE A FELONY CONVICTION UNDER PENAL CODE
SECTION 186.22, SUBDIVISION (d)?
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