BILL ANALYSIS
SB 492
Page 1
Date of Hearing: June 16, 2009
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Juan Arambula, Chair
SB 492 (Maldonado) - As Amended: April 23, 2009
SUMMARY : Creates 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. Specifically, this
bill :
1)Punishes any person required to register as a gang member, as
specified and who loiters on or near school property after
being asked to leave as follows:
a) Upon first conviction, by a fine not exceeding 1,000; by
imprisonment in a county jail for a period of not more than
one year; or by both that fine and imprisonment.
b) Upon a second conviction, by a fine not exceeding
$2,000; by imprisonment in a county jail for a period of
not more than one year; or by both that fine and
imprisonment. The court shall consider a period of
imprisonment of at least 10 days.
c) If the defendant has been previously convicted two or
more times, by a fine not exceeding $2,000; by imprisonment
in a county jail for a period of not more than one year; or
by both that fine and imprisonment. The court shall
consider a period of imprisonment of at least 90 days.
2)Provides that if the court grants probation to a defendant who
is convicted of, or a minor as to whom a petition is sustained
for, a violation of loitering on or near school grounds after
being asked to leave and the defendant or minor is a person
required to register as a gang member with the chief of police
or sheriff, the court shall impose a condition prohibiting the
defendant from entering the grounds of a school without the
express permission of the chief administrative officer of the
school.
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3)Provides that the court may excuse a defendant or minor from
this condition in the unusual case in which the interests of
justice warrant this excuse. The court shall state the
reasons on the record for excusing a defendant or minor from
this condition.
EXISTING LAW :
1)Requires persons convicted of a gang-related offenses, as
specified shall register with the chief of police of the city
in which he or she resides, or the sheriff of the county if he
or she resides in an unincorporated area, within 10 days of
release from custody or within 10 days of his or her arrival
in any city, county, or city and county to reside there,
whichever occurs first. [Penal Code Section 186.30(a).]
2)States every person who loiters about any school or public
place at or near which children attend or normally congregate
and who remains at any school or public place at or near which
children attend or normally congregate, or who reenters or
comes upon a school or place within 72 hours, after being
asked to leave by the chief administrative official of that
school or, in the absence of the chief administrative
official, the person acting as the chief administrative
official, or by a member of the security patrol of the school
district who has been given authorization, in writing, by the
chief administrative official of that school to act as his or
her agent in performing this duty, or a city police officer,
or sheriff or deputy sheriff, or Department of the California
Highway Patrol peace officer is a vagrant, and is punishable
by a fine of not exceeding $1,000 or by imprisonment in the
county jail for not exceeding six months, or by both the fine
and the imprisonment. [Penal Code Section 653b(a).]
3)Provides that every person required to register as a sex
offender who loiters, as specified, shall be punished as
follows:
a) Upon a first conviction, by a fine not exceeding $2,000,
by imprisonment in a county jail for a period of not more
than six months, or by both that fine and imprisonment.
b) If the defendant has been previously convicted once of a
violation of loitering, as specified, by imprisonment in a
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county jail for a period of not less than 10 days or more
than six months, or by both imprisonment and a fine of not
exceeding $2,000, and shall not be released on probation,
parole, or any other basis until he or she has served at
least 10 days.
c) If the defendant has been previously convicted two or
more times of loitering, as specified, by imprisonment in a
county jail for a period of not less than 90 days or more
than six months, or by both imprisonment and a fine of not
exceeding $2,000, and shall not be released on probation,
parole, or any other basis until he or she has served at
least 90 days. [Penal Code Section 653(b)(1) to (3).]
4)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).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The City of
Salinas has been experiencing a dangerous increase in
gang-related activity. Last year, 23 of the 25 homicides in
the city were blamed on gangs. During a three-day period in
January 2009, five people were killed in separate gang-related
incidences. Of those five killed, two were students at Alisal
High School, including a fifteen-year-old boy who was fatally
shot behind the school on Monday, January 12. The boy was
near a soccer field at the back of campus at 9:00 a.m., during
school hours, when he was shot in the torso.
"Children should not be afraid to go to school or intimidated
by illegal activities occurring just on the other side of the
fence. It is clear by the violence in Salinas that gang
members are congregating near school grounds. How can a
student be expected to learn with criminal activity going on
right outside the school?
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"Gang members in Salinas have become increasingly brazen in
their illegal activities, going so far as to post a gang 'hit
list' on YouTube. SB 492 would prevent convicted gang members
from loitering on or around school grounds. While loitering
is already a crime, this bill would add a sentencing
enhancement if the person has been previously convicted of a
gang offense. SB 1128 (Alquist), Chapter 337, Statutes of
2006, which amended Penal Code Section 653b, established legal
precedence by providing for sentencing enhancements when
registered sex offenders are convicted of loitering around
schools.
"Additionally, this bill would prohibit a criminal on
probation from entering school grounds without the permission
of a school official. While still allowing convicted gang
members the ability to be on campus for legitimate reasons,
this provision will prevent gang members on probation from
congregating near school grounds by making the prohibition a
condition of probation.
2)Current Law Related to Loitering on School Property and Gang
Registration : Existing law states that any person who loiters
on school property or public place where children attend
school or normally congregate and who returns within 72 hours
of being asked to leave is guilty of a misdemeanor, punishable
by up to six months in the county jail and/or a fine of not
more than $1,000. [Penal Code Section 653b(a).] In 2006, a
graduated penalty scheme was created to punish any registered
sex offender who loiters on school property, as prohibited in
Penal Code Section 653b. Similarly, this bill also creates a
graduated penalty scheme for registered gang members to loiter
on school property.
Penal Code Section 186.30(b) states a person must register as a
gang member when convicted of any offense or enhancement found
to be for the benefit of, or at the direction of, a criminal
street gang or any crime determined by the court to be
gang-related at the time of sentencing or disposition. Gang
registration terminates after five years. [Penal Code Section
186.32(c).]
3)Reports of Effective in Combating Gang Violence : 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.
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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
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
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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,
found at .]
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:
"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'.
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"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
petri 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, Phase
III Report, Executive Summary, December 29, 2006.)
4)Gang Injunctions : Under current law, local governments may
serve injunctions on gang members to prohibit congregation in
a certain area. Gang injunctions are an alternative method of
controlling where registered gang members loiter. In 1988,
the California Legislature enacted the Street Terrorism
Enforcement and Prevention (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
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street gang. However, a gang member's 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. Additionally, the STEP
Act declares that every building or place used for the purpose
of committing crimes by criminal street gang members is a
public and/or a private nuisance. [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).]
Existing law characterizes a public nuisance as "one which
affects at the same time an entire community or neighborhood,
or any considerable number of persons, although the extent of
the annoyance or damage inflicted upon individuals may be
unequal." (Civil Code Section 3480.) In its declaration that
any place used for gang-related activity is a public nuisance,
the STEP Act created authority to abate the nuisance by
enjoining further criminal activity. [Penal Code Section
186.22a(b).] Gang injunctions are filed in civil court where,
after a hearing, the judge has discretion to issue a
preliminary or permanent injunction prohibiting identified
individuals from being present in a specified area. All named
gang members are served notice of the hearing and the
injunction. If a preliminary injunction is issued, targeted
individuals must be served again with amended papers before
the injunction may be enforced. Offenders can be prosecuted
in either civil or criminal court if it is determined he or
she violated the injunction. [Maxson, Hennigan & Sloane, It's
Getting Crazy Out There: Can a Civil Gang Injunction Change a
Community? 4 Criminology & Public Policy 3 (Aug. 2005),
577-606.]
5)Conditions of Probation : Provisions of this bill state that
if the defendant is convicted of loitering on school property,
as specified, after being asked to leave and is also a
registered gang member, the court must impose a condition
prohibiting the defendant from entering the grounds of a
school without express permission of the school's Chief
Administrative Officer. Violating a condition of probation
may result in probation revocation and imposition of sentence,
which may include jail or prison time. This bill also states
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the court may excuse a defendant from this condition in the
unusual case in which the interests of justice warrant the
excuse. As a general matter, conditions of probation are
reasonably related to the offense and are designed to prevent
future criminal activity.
"A condition of probation will not be held invalid unless it:
(1) has no relationship to the crime of which the offender was
convicted, (2) relates to conduct which is not in itself
criminal, and (3) requires or forbids conduct which is not
reasonably related to future criminality. This test is
conjunctive - all three prongs must be satisfied before a
reviewing court will invalidate a probation term. As such,
even if a condition of probation has no relationship to the
crime of which a defendant was convicted and involves conduct
that is not itself criminal, the condition is valid as long
the condition is reasonably related to preventing future
criminality." Conditions of probation are reviewed by the
appellate courts under an abuse of discretion standard.
[People vs. Lent (1975) 15 Cal.3rd 759, 764; People v. Olguin,
(2008) 45 Cal. 4th 375, 379.] It is likely a court granting
probation to any person convicted of loitering on school
grounds would also issue a stay away order from that school
without reference to the defendant's gang status. However,
the probation condition prescribed by this bill prohibits a
registered gang member from entering any school not just the
school he or she loitered.
6)Related Legislation : SB 282 (Wright) provides that an
injunction issued against an individual who is a criminal
street gang member shall have a duration of not more than five
years, and specifies the circumstances under which the
prosecutor may apply for a renewal of the injunction. SB 282
is scheduled to be heard in this Committee today.
7)Arguments in Support : None submitted.
8)Arguments in Opposition :
a) According to the California Public Defenders
Association , "By setting up increasingly harsh penalties
for each violation, this bill would expand and incentive
the arrest and incarceration of scores of persons for the
crime of loitering-defined as 'delaying, lingering, or
idling' on school premises-simply on the basis of a past
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status that may not even currently exist. There is no
requirement in the bill that the person arrested currently
be a gang member, or even currently be required to register
as a gang member. This bill would subject to arrest,
prosecution and incarceration, grown men and women who were
required to register as a youth, but who are now working as
community peace activists or organizers. It could
similarly apply to striking or organizing teachers or
school staff, to virtually anyone the police chooses to
cite. Moreover, a simple belief by an officer that a
person might have once had to register could, under this
bill, supply probable cause to stop and detain a person,
even handcuff and arrest the person, under the bogus
pretense of investigating a loitering charge."
b) According to the California Attorneys for Criminal
Justice , "Current law already provides for criminal
penalties for anyone who loiters near school without lawful
business. There is no evidence that these state laws or
penalties are inadequate in any respect such that there is
a public outcry for additional legislation. Furthermore,
enhanced penalties for sex offenders were adopted to be
consistent with initiatives passed by voters.
"This measure would increase the penalties for someone who
must register with local law enforcement pursuant to
specified statutes. Nothing in this bill requires the
prior activity of the individual to be related to
interfering with school activities or having any connection
to minors whatsoever. While loitering may be prohibited by
current law, is it not in and of itself a dangerous or
violent crime. Nor does SB 492 require that the individual
be engaged in criminal activity at the time-he or she could
be merely standing on the street near a school.
Additionally, the bill also prohibits standing in a park or
any other 'public place' where children congregate, even if
someone is just flying a kite. Despite this relatively low
bar, SB 492 permits the greatest misdemeanor punishment
available-up to one year in the county jail-for merely
sitting in one's car near a high school. This punishment
may be greater that for any prior gang act.
"There is also no such basis for enhancing a person's penalty
who is required to register for past criminal street gang
activity. And nothing in this legislation provides an
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avenue for individuals to prove that they are no longer
involved with gangs. Additionally, laws like this proposal
become self-fulfilling prophecies in that the enhanced
penalties increase the youth's jail time and he or she
loses school time and becomes more institutionalized where
the chance for meeting hard core gang bangers increases.
In the past thirty years, the population of our prisons has
increased by ten times without much to show for it except
more money going to cage people rather than their
education."
9)Prior Legislation : SB 1128, Chapter 337, Statutes of 2006,
states that those persons required to register as sex
offenders and present on any school property or loiter on any
sidewalk in front or adjacent to the school or youth
recreational facility where minors are present without lawful
business purpose and without permission from the chief
operating officer is guilty of a misdemeanor.
REGISTERED SUPPORT / OPPOSITION :
Support
Los Angeles County District Attorney's Office
Opposition
California Attorneys for Criminal Justice
California Public Defenders Association
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744