BILL NUMBER: AB 117 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 11, 2011
INTRODUCED BY Committee on Budget (Blumenfield (Chair), Alejo,
Allen, Brownley, Buchanan, Butler, Cedillo, Chesbro, Dickinson,
Feuer, Gordon, Huffman, Mitchell, Monning, and Swanson)
JANUARY 10, 2011
An act relating to the Budget Act of 2011.
An act to amend Section 115215 of the Health and Safety Code, to
amend Sections 113, 114, 186.22, 186.26, 186.33, 298.2, 299.5, 598c,
598d, 666, 3000.09, and 3001 of the Penal Code, and to amend Section
1710.5 of the Welfare and Institutions Code, relating to criminal
justice realignment, making an appropriation therefor, to take effect
immediately, bill related to the budget.
LEGISLATIVE COUNSEL'S DIGEST
AB 117, as amended, Committee on Budget. Budget Act of
2011. Criminal justice realignment.
Existing law provides that certain specified felonies are
punishable by incarceration in state prison. If AB 109 of the 2011-12
Regular Session becomes operative, certain of those felonies shall
instead be punishable by incarceration in a county jail.
This bill would provide that, if AB 109 of the 2011-12 Regular
Session becomes operative, certain specified felonies would continue
to be punishable by incarceration in state prison. The bill would
make other technical changes.
Existing law provides that petty theft is a misdemeanor, except
that every person who, having been convicted 3 or more times of petty
theft, grand theft, auto theft, burglary, carjacking, robbery, or
receiving stolen property and having served time in a penal
institution therefor, is subsequently convicted of petty theft, is
punishable by imprisonment in a county jail not exceeding one year,
or in the state prison. Existing law also provides that persons
required to register as sex offenders, or with a prior serious or
violent felony conviction who have been convicted and imprisoned for
the commission of specified crimes, including, among others, petty
theft, auto theft, burglary, carjacking, or robbery, are subject to
imprisonment in the state prison with one prior qualifying offense,
rather than 3. If AB 109 of the 2011-12 Regular Session becomes
operative, those provisions subjecting persons to imprisonment in the
state prison with one prior qualifying offense would be deleted.
This bill would, if AB 109 of the 2011-12 Regular Session becomes
operative, restore those provisions subjecting persons to
imprisonment in the state prison with one prior qualifying offense
and thereby maintain existing law.
This bill would appropriate $1,000 from the General Fund to the
Department of Corrections and Rehabilitation for purposes of state
operations. This bill would declare that it is to take effect
immediately as a bill providing appropriations related to the Budget
Bill.
This bill would express the intent of the Legislature to enact
statutory changes relating to the Budget Act of 2011.
Vote: majority. Appropriation: no yes
. Fiscal committee: no yes .
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 115215 of the Health
and Safety Code , as amended by Section 200 of Chapter 15
of the Statutes of 2011, is amended to read:
115215. (a) Any person who violates this chapter, or rules,
regulations, or orders in effect adopted pursuant to this chapter, is
guilty of a misdemeanor and shall, upon conviction, be punished by a
fine not to exceed one thousand dollars ($1,000) or by imprisonment
in a county jail for a period not to exceed 180 days, or by both the
fine and imprisonment.
(b) Any person who knowingly disposes or causes the disposal of
any radioactive material regulated by this chapter, or who reasonably
should have known that the person was disposing or causing the
disposal of the material, at a facility within the state that does
not have a license for disposal issued by the department pursuant to
this chapter, or at any point in the state that is not authorized
according to this chapter, or by any other local, state, or federal
agency having authority over radioactive materials, and is in
violation of this chapter, or any regulation or order adopted
pursuant to this chapter, is guilty of a public offense, and upon
conviction, may be punished as follows:
(1) If the disposal is found to have caused a substantial danger
to the public health or safety, the person may be punished by
imprisonment in a county jail for not more than one year or by
imprisonment pursuant to subdivision (h) of Section 1170 of the Penal
Code for 16, 24, or 36 months, except as otherwise provided in
paragraph (2). The court may also impose, upon a person convicted of
violating this subdivision, a fine of not more than one hundred
thousand dollars ($100,000) for each day of violation, except as
otherwise provided in paragraph (2).
(2) If the act that violated this subdivision caused great bodily
injury or caused a substantial probability that death could result,
the person convicted may be punished by imprisonment pursuant to
subdivision (h) of Section 1170 of the Penal Code for three, five, or
seven years and may be fined not more than two hundred fifty
thousand dollars ($250,000) for each day of violation.
(c) Any person who knowingly transports or causes the
transportation of any radioactive material regulated by this chapter,
or who reasonably should have known that the person was causing the
transportation of the material, to a facility in the state that does
not have a license from the department issued pursuant to this
chapter, to any point in the state that is not authorized by this
chapter, or to any point in the state that is not authorized by any
other local, state, or federal agency having authority over
radioactive materials, and is in violation of this chapter, or any
regulation or order adopted pursuant to this chapter, is guilty of a
public offense and, upon conviction, may be punished as follows:
(1) If the transportation is found to have caused a substantial
danger to the public health or safety, the person may be punished by
imprisonment in the county jail for not more than one year or by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for 16, 24, or 36
months, except as otherwise provided in paragraph (2). The court may
also impose, upon a person convicted of violating this subdivision, a
fine of not more than one hundred thousand dollars ($100,000) for
each day of violation, except as provided by paragraph (2).
(2) If the transportation that violated this subdivision caused
great bodily injury or caused a substantial probability that death
could result, the person convicted may be punished by imprisonment
in the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code for three, five, or seven years and
may be fined not more than two hundred fifty thousand dollars
($250,000) for each day of violation.
(d) Notwithstanding any other provision of this chapter,
radioactive materials used in medical treatment or result from
medical treatment, that are disposed, stored, handled, or transported
in a manner authorized pursuant to this chapter, are exempt from
subdivisions (b) and (c).
(e) Notwithstanding subdivision (a), any person who violates any
provision of this chapter relating to mammography or regulations
adopted pursuant to those provisions is guilty of a misdemeanor and
shall, upon conviction thereof, be punished by a fine not to exceed
five thousand dollars ($5,000), per day of offense, or by
imprisonment in the county jail not to exceed 180 days, or both the
fine and imprisonment.
SEC. 2. Section 113 of the Penal Code, as amended
by Section 246 of Chapter 15 of the Statutes of 2011, is amended to
read:
113. Any person who manufactures, distributes or sells false
documents to conceal the true citizenship or resident alien status of
another person is guilty of a felony, and shall be punished by
imprisonment pursuant to subdivision (h) of Section 1170
in the state prison for five years or by a fine
of seventy-five thousand dollars ($75,000).
SEC. 3. Section 114 of the Penal Code
, as amended by Section 247 of Chapter 15 of the Statutes
of 2011, is amended to read:
114. Any person who uses false documents to conceal his or her
true citizenship or resident alien status is guilty of a felony, and
shall be punished by imprisonment pursuant to subdivision
(h) of Section 1170 in the state prison for five
years or by a fine of twenty-five thousand dollars ($25,000).
SEC. 4. Section 186.22 of the Penal
Code , as amended by Section 275 of Chapter 15 of the
Statutes of 2011, is amended to read:
186.22. (a) 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 pursuant
to subdivision (h) of Section 1170 in the state prison
for 16 months, or two or three years.
(b) (1) Except as provided in paragraphs (4) and (5), 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 any criminal
conduct by gang members, shall, upon conviction of that felony, in
addition and consecutive to the punishment prescribed for the felony
or attempted felony of which he or she has been convicted, be
punished as follows:
(A) Except as provided in subparagraphs (B) and (C), the person
shall be punished by an additional term pursuant to
subdivision (h) of Section 1170 of two, three, or four
years at the court's discretion.
(B) If the felony is a serious felony, as defined in subdivision
(c) of Section 1192.7, the person shall be punished by an additional
term of five years in the state prison .
(C) If the felony is a violent felony, as defined in subdivision
(c) of Section 667.5, the person shall be punished by an additional
term of 10 years in the state prison .
(2) If the underlying felony described in paragraph (1) is
committed on the grounds of, or within 1,000 feet of, a public or
private elementary, vocational, junior high, or high school, during
hours in which the facility is open for classes or school-related
programs or when minors are using the facility, that fact shall be a
circumstance in aggravation of the crime in imposing a term under
paragraph (1).
(3) The court shall select the sentence enhancement which, in the
court's discretion, best serves the interests of justice and shall
state the reasons for its choice on the record at the time of the
sentencing in accordance with the provisions of subdivision (d) of
Section 1170.1.
(4) Any person who is convicted of a felony enumerated in this
paragraph 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, upon conviction of that felony, be sentenced to an
indeterminate term of life imprisonment with a minimum term of the
indeterminate sentence calculated as the greater of:
(A) The term determined by the court pursuant to Section 1170 for
the underlying conviction, including any enhancement applicable under
Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or
any period prescribed by Section 3046, if the felony is any of the
offenses enumerated in subparagraph (B) or (C) of this paragraph.
(B) Imprisonment in the state prison for 15 years, if the felony
is a home invasion robbery, in violation of subparagraph (A) of
paragraph (1) of subdivision (a) of Section 213; carjacking, as
defined in Section 215; a felony violation of Section 246; or a
violation of Section 12022.55.
(C) Imprisonment in the state prison for seven years, if the
felony is extortion, as defined in Section 519; or threats to victims
and witnesses, as defined in Section 136.1.
(5) Except as provided in paragraph (4), any person who violates
this subdivision in the commission of a felony punishable by
imprisonment in the state prison for life shall not be paroled until
a minimum of 15 calendar years have been served.
(c) If the court grants probation or suspends the execution of
sentence imposed upon the defendant for a violation of subdivision
(a), or in cases involving a true finding of the enhancement
enumerated in subdivision (b), the court shall require that the
defendant serve a minimum of 180 days in a county jail as a condition
thereof.
(d) Any person who is convicted of a public offense punishable as
a felony or a misdemeanor, which is committed for the benefit of, at
the direction of, or in association with any criminal street gang,
with the specific intent to promote, further, or assist in any
criminal conduct by gang members, shall be punished by imprisonment
in the county jail not to exceed one year, or by imprisonment
pursuant to subdivision (h) of Section 1170
in the state prison for one, two, or three years, provided that
any person sentenced to imprisonment in the county jail not
to exceed one year shall be imprisoned for a period
of not to exceed one year, but not less
than 180 days, and shall not be eligible for release upon completion
of sentence, parole, or any other basis, until he or she has served
180 days. If the court grants probation or suspends the execution of
sentence imposed upon the defendant, it shall require as a condition
thereof that the defendant serve 180 days in a county jail.
(e) As used in this chapter, "pattern of criminal gang activity"
means 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:
(1) Assault with a deadly weapon or by means of force likely to
produce great bodily injury, as defined in Section 245.
(2) Robbery, as defined in Chapter 4 (commencing with Section 211)
of Title 8 of Part 1.
(3) Unlawful homicide or manslaughter, as defined in Chapter 1
(commencing with Section 187) of Title 8 of Part 1.
(4) The sale, possession for sale, transportation, manufacture,
offer for sale, or offer to manufacture controlled substances as
defined in Sections 11054, 11055, 11056, 11057, and 11058 of the
Health and Safety Code.
(5) Shooting at an inhabited dwelling or occupied motor vehicle,
as defined in Section 246.
(6) Discharging or permitting the discharge of a firearm from a
motor vehicle, as defined in subdivisions (a) and (b) of Section
12034.
(7) Arson, as defined in Chapter 1 (commencing with Section 450)
of Title 13.
(8) The intimidation of witnesses and victims, as defined in
Section 136.1.
(9) Grand theft, as defined in subdivision (a) or (c) of Section
487.
(10) Grand theft of any firearm, vehicle, trailer, or vessel.
(11) Burglary, as defined in Section 459.
(12) Rape, as defined in Section 261.
(13) Looting, as defined in Section 463.
(14) Money laundering, as defined in Section 186.10.
(15) Kidnapping, as defined in Section 207.
(16) Mayhem, as defined in Section 203.
(17) Aggravated mayhem, as defined in Section 205.
(18) Torture, as defined in Section 206.
(19) Felony extortion, as defined in Sections 518 and 520.
(20) Felony vandalism, as defined in paragraph (1) of subdivision
(b) of Section 594.
(21) Carjacking, as defined in Section 215.
(22) The sale, delivery, or transfer of a firearm, as defined in
Section 12072.
(23) Possession of a pistol, revolver, or other firearm capable of
being concealed upon the person in violation of paragraph (1) of
subdivision (a) of Section 12101.
(24) Threats to commit crimes resulting in death or great bodily
injury, as defined in Section 422.
(25) Theft and unlawful taking or driving of a vehicle, as defined
in Section 10851 of the Vehicle Code.
(26) Felony theft of an access card or account information, as
defined in Section 484e.
(27) Counterfeiting, designing, using, or attempting to use an
access card, as defined in Section 484f.
(28) Felony fraudulent use of an access card or account
information, as defined in Section 484g.
(29) Unlawful use of personal identifying information to obtain
credit, goods, services, or medical information, as defined in
Section 530.5.
(30) Wrongfully obtaining Department of Motor Vehicles
documentation, as defined in Section 529.7.
(31) Prohibited possession of a firearm in violation of Section
12021.
(32) Carrying a concealed firearm in violation of Section 12025.
(33) Carrying a loaded firearm in violation of Section 12031.
(f) As used in this chapter, "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
paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of
subdivision (e), 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.
(g) Notwithstanding any other law, the court may strike the
additional punishment for the enhancements provided in this section
or refuse to impose the minimum jail sentence for misdemeanors in an
unusual case where the interests of justice would best be served, if
the court specifies on the record and enters into the minutes the
circumstances indicating that the interests of justice would best be
served by that disposition.
(h) Notwithstanding any other provision of law, for each person
committed to the Division of Juvenile Facilities for a conviction
pursuant to subdivision (a) or (b) of this section, the offense shall
be deemed one for which the state shall pay the rate of 100 percent
of the per capita institutional cost of the Division of Juvenile
Facilities, pursuant to Section 912.5 of the Welfare and Institutions
Code.
(i) In order to secure a conviction or sustain a juvenile
petition, pursuant to subdivision (a) it is not necessary for the
prosecution to prove that the person devotes all, or a substantial
part, of his or her time or efforts to the criminal street gang, nor
is it necessary to prove that the person is a member of the criminal
street gang. Active participation in the criminal street gang is all
that is required.
(j) 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 subdivision (e). A pattern of gang activity
cannot be established solely by proof of commission of offenses
enumerated in paragraphs (26) to (30), inclusive, of subdivision (e),
alone.
(k) This section shall remain in effect only until January 1,
2012, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2012, deletes or extends
that date.
SEC. 5. Section 186.22 of the Penal
Code , as amended by Section 276 of Chapter 15 of the
Statutes of 2011, is amended to read:
186.22. (a) 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 pursuant
to subdivision (h) of Section 1170 in the state prison
for 16 months, or two or three years.
(b) (1) Except as provided in paragraphs (4) and (5), 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 any criminal
conduct by gang members, shall, upon conviction of that felony, in
addition and consecutive to the punishment prescribed for the felony
or attempted felony of which he or she has been convicted, be
punished as follows:
(A) Except as provided in subparagraphs (B) and (C), the person
shall be punished by an additional term pursuant to
subdivision (h) of Section 1170 of two, three, or four
years at the court's discretion.
(B) If the felony is a serious felony, as defined in subdivision
(c) of Section 1192.7, the person shall be punished by an additional
term of five years in the state prison .
(C) If the felony is a violent felony, as defined in subdivision
(c) of Section 667.5, the person shall be punished by an additional
term of 10 years in the state prison .
(2) If the underlying felony described in paragraph (1) is
committed on the grounds of, or within 1,000 feet of, a public or
private elementary, vocational, junior high, or high school, during
hours in which the facility is open for classes or school-related
programs or when minors are using the facility, that fact shall be a
circumstance in aggravation of the crime in imposing a term under
paragraph (1).
(3) The court shall order the imposition of the middle term of the
sentence enhancement, unless there are circumstances in aggravation
or mitigation. The court shall state the reasons for its choice of
sentencing enhancements on the record at the time of the sentencing.
(4) Any person who is convicted of a felony enumerated in this
paragraph 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, upon conviction of that felony, be sentenced to an
indeterminate term of life imprisonment with a minimum term of the
indeterminate sentence calculated as the greater of:
(A) The term determined by the court pursuant to Section 1170 for
the underlying conviction, including any enhancement applicable under
Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or
any period prescribed by Section 3046, if the felony is any of the
offenses enumerated in subparagraph (B) or (C) of this paragraph.
(B) Imprisonment in the state prison for 15 years, if the felony
is a home invasion robbery, in violation of subparagraph (A) of
paragraph (1) of subdivision (a) of Section 213; carjacking, as
defined in Section 215; a felony violation of Section 246; or a
violation of Section 12022.55.
(C) Imprisonment in the state prison for seven years, if the
felony is extortion, as defined in Section 519; or threats to victims
and witnesses, as defined in Section 136.1.
(5) Except as provided in paragraph (4), any person who violates
this subdivision in the commission of a felony punishable by
imprisonment in the state prison for life shall not be paroled until
a minimum of 15 calendar years have been served.
(c) If the court grants probation or suspends the execution of
sentence imposed upon the defendant for a violation of subdivision
(a), or in cases involving a true finding of the enhancement
enumerated in subdivision (b), the court shall require that the
defendant serve a minimum of 180 days in a county jail as a condition
thereof.
(d) Any person who is convicted of a public offense punishable as
a felony or a misdemeanor, which is committed for the benefit of, at
the direction of, or in association with any criminal street gang,
with the specific intent to promote, further, or assist in any
criminal conduct by gang members, shall be punished by imprisonment
in the county jail not to exceed one year, or by imprisonment
pursuant to subdivision (h) of Section 1170
in the state prison for one, two, or three years, provided that
any person sentenced to imprisonment in the county jail not
exceeding one year shall be imprisoned for a period
of not to exceed one year, but not less
than 180 days, and shall not be eligible for release upon completion
of sentence, parole, or any other basis, until he or she has served
180 days. If the court grants probation or suspends the execution of
sentence imposed upon the defendant, it shall require as a condition
thereof that the defendant serve 180 days in a county jail.
(e) As used in this chapter, "pattern of criminal gang activity"
means 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:
(1) Assault with a deadly weapon or by means of force likely to
produce great bodily injury, as defined in Section 245.
(2) Robbery, as defined in Chapter 4 (commencing with Section 211)
of Title 8 of Part 1.
(3) Unlawful homicide or manslaughter, as defined in Chapter 1
(commencing with Section 187) of Title 8 of Part 1.
(4) The sale, possession for sale, transportation, manufacture,
offer for sale, or offer to manufacture controlled substances as
defined in Sections 11054, 11055, 11056, 11057, and 11058 of the
Health and Safety Code.
(5) Shooting at an inhabited dwelling or occupied motor vehicle,
as defined in Section 246.
(6) Discharging or permitting the discharge of a firearm from a
motor vehicle, as defined in subdivisions (a) and (b) of Section
12034.
(7) Arson, as defined in Chapter 1 (commencing with Section 450)
of Title 13.
(8) The intimidation of witnesses and victims, as defined in
Section 136.1.
(9) Grand theft, as defined in subdivision (a) or (c) of Section
487.
(10) Grand theft of any firearm, vehicle, trailer, or vessel.
(11) Burglary, as defined in Section 459.
(12) Rape, as defined in Section 261.
(13) Looting, as defined in Section 463.
(14) Money laundering, as defined in Section 186.10.
(15) Kidnapping, as defined in Section 207.
(16) Mayhem, as defined in Section 203.
(17) Aggravated mayhem, as defined in Section 205.
(18) Torture, as defined in Section 206.
(19) Felony extortion, as defined in Sections 518 and 520.
(20) Felony vandalism, as defined in paragraph (1) of subdivision
(b) of Section 594.
(21) Carjacking, as defined in Section 215.
(22) The sale, delivery, or transfer of a firearm, as defined in
Section 12072.
(23) Possession of a pistol, revolver, or other firearm capable of
being concealed upon the person in violation of paragraph (1) of
subdivision (a) of Section 12101.
(24) Threats to commit crimes resulting in death or great bodily
injury, as defined in Section 422.
(25) Theft and unlawful taking or driving of a vehicle, as defined
in Section 10851 of the Vehicle Code.
(26) Felony theft of an access card or account information, as
defined in Section 484e.
(27) Counterfeiting, designing, using, or attempting to use an
access card, as defined in Section 484f.
(28) Felony fraudulent use of an access card or account
information, as defined in Section 484g.
(29) Unlawful use of personal identifying information to obtain
credit, goods, services, or medical information, as defined in
Section 530.5.
(30) Wrongfully obtaining Department of Motor Vehicles
documentation, as defined in Section 529.7.
(31) Prohibited possession of a firearm in violation of Section
12021.
(32) Carrying a concealed firearm in violation of Section 12025.
(33) Carrying a loaded firearm in violation of Section 12031.
(f) As used in this chapter, "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
paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of
subdivision (e), 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.
(g) Notwithstanding any other law, the court may strike the
additional punishment for the enhancements provided in this section
or refuse to impose the minimum jail sentence for misdemeanors in an
unusual case where the interests of justice would best be served, if
the court specifies on the record and enters into the minutes the
circumstances indicating that the interests of justice would best be
served by that disposition.
(h) Notwithstanding any other provision of law, for each person
committed to the Division of Juvenile Facilities for a conviction
pursuant to subdivision (a) or (b) of this section, the offense shall
be deemed one for which the state shall pay the rate of 100 percent
of the per capita institutional cost of the Division of Juvenile
Facilities, pursuant to Section 912.5 of the Welfare and Institutions
Code.
(i) In order to secure a conviction or sustain a
juvenile petition, pursuant to subdivision (a) it is not necessary
for the prosecution to prove that the person devotes all, or a
substantial part, of his or her time or efforts to the criminal
street gang, nor is it necessary to prove that the person is a member
of the criminal street gang. Active participation in the criminal
street gang is all that is required.
(j) 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 subdivision (e). A pattern of gang activity
cannot be established solely by proof of commission of offenses
enumerated in paragraphs (26) to (30), inclusive, of subdivision (e),
alone.
(k) This section shall become operative on January 1, 2012.
SEC. 6. Section 186.26 of the Penal
Code , as amended by Section 277 of Chapter 15 of the
Statutes of 2011, is amended to read:
186.26. (a) 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, shall be punished by imprisonment
pursuant to subdivision (h) of Section 1170 in the
state prison for 16 months, or two or three years.
(b) Any person who 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, as defined in subdivision (f)
of Section 186.22, shall be punished by imprisonment
pursuant to subdivision (h) of Section 1170 in the
state prison for two, three, or four years.
(c) Any person who uses physical violence to coerce, induce, or
solicit another person to actively participate in any criminal street
gang, as defined in subdivision (f) of Section 186.22, or to prevent
the person from leaving a criminal street gang, shall be punished by
imprisonment pursuant to subdivision (h) of Section 1170
in the state prison for three, four, or five
years.
(d) If the person solicited, recruited, coerced, or threatened
pursuant to subdivision (a), (b), or (c) is a minor, an additional
term pursuant to subdivision (h) of Section 1170
of three years shall be imposed in addition and consecutive to the
penalty prescribed for a violation of any of these subdivisions.
(e) Nothing in this section shall be construed to limit
prosecution under any other provision of law.
SEC. 7. Section 186.33 of the Penal
Code , as amended by Section 279 of Chapter 15 of the
Statutes of 2011, is amended to read:
186.33. (a) Any person required to register pursuant to Section
186.30 who knowingly violates any of its provisions is guilty of a
misdemeanor.
(b) (1) Any person who knowingly fails to register pursuant to
Section 186.30 and is subsequently convicted of, or any person for
whom a petition is subsequently sustained for a violation of, any of
the offenses specified in Section 186.30, shall be punished by an
additional term of imprisonment pursuant to subdivision (h)
of Section 1170 in the state prison for 16
months, or two, or three years. The court shall select the sentence
enhancement which, in the court's discretion, best serves the
interests of justice and shall state the reasons for its choice on
the record at the time of sentencing in accordance with the
provisions of subdivision (d) of Section 1170.1.
(2) The existence of any fact bringing a person under this
subdivision shall be alleged in the information, indictment, or
petition, and be either admitted by the defendant or minor in open
court, or found to be true or not true by the trier of fact.
(c) This section shall remain in effect only until January 1,
2012, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2012, deletes or extends
that date.
SEC. 8. Section 186.33 of the Penal
Code , as amended by Section 280 of Chapter 15 of the
Statutes of 2011, is amended to read:
186.33. (a) Any person required to register pursuant to Section
186.30 who knowingly violates any of its provisions is guilty of a
misdemeanor.
(b) (1) Any person who knowingly fails to register pursuant to
Section 186.30 and is subsequently convicted of, or any person for
whom a petition is subsequently sustained for a violation of, any of
the offenses specified in Section 186.30, shall be punished by an
additional term of imprisonment pursuant to subdivision (h)
of Section 1170 in the state prison for 16
months, or two, or three years. The court shall order imposition of
the middle term unless there are circumstances in aggravation or
mitigation. The court shall state its reasons for the enhancement
choice on the record at the time of sentencing.
(2) The existence of any fact bringing a person under this
subdivision shall be alleged in the information, indictment, or
petition, and be either admitted by the defendant or minor in open
court, or found to be true or not true by the trier of fact.
(c) This section shall become operative on January 1, 2012.
SEC. 9. Section 298.2 of the Penal Code
, as amended by Section 322 of Chapter 15 of the Statutes
of 2011, is amended to read:
298.2. (a) Any person who is required to submit a specimen sample
or print impression pursuant to this chapter who engages or attempts
to engage in any of the following acts is guilty of a felony
punishable by imprisonment pursuant to subdivision (h) of
Section 1170 in the state prison for two, three,
or four years:
(1) Knowingly facilitates the collection of a wrongfully
attributed blood specimen, buccal swab sample, or thumb or palm print
impression, with the intent that a government agent or employee be
deceived as to the origin of a DNA profile or as to any
identification information associated with a specimen, sample, or
print impression required for submission pursuant to this chapter.
(2) Knowingly tampers with any specimen, sample, print, or the
collection container for any specimen or sample, with the intent that
any government agent or employee be deceived as to the identity of
the person to whom the specimen, sample, or print relates.
SEC. 10. Section 299.5 of the Penal
Code , as amended by Section 323 of Chapter 15 of the
Statutes of 2011, is amended to read:
299.5. (a) All DNA and forensic identification profiles and other
identification information retained by the Department of Justice
pursuant to this chapter are exempt from any law requiring disclosure
of information to the public and shall be confidential except as
otherwise provided in this chapter.
(b) All evidence and forensic samples containing biological
material retained by the Department of Justice DNA Laboratory or
other state law enforcement agency are exempt from any law requiring
disclosure of information to the public or the return of biological
specimens, samples, or print impressions.
(c) Non-DNA forensic identification information may be filed with
the offender's file maintained by the Sex Registration Unit of the
Department of Justice or in other computerized data bank or database
systems maintained by the Department of Justice.
(d) The DNA and other forensic identification information retained
by the Department of Justice pursuant to this chapter shall not be
included in the state summary criminal history information. However,
nothing in this chapter precludes law enforcement personnel from
entering into a person's criminal history information or offender
file maintained by the Department of Justice, the fact that the
specimens, samples, and print impressions required by this chapter
have or have not been collected from that person.
(e) The fact that the blood specimens, saliva or buccal swab
samples, and print impressions required by this chapter have been
received by the DNA Laboratory of the Department of Justice shall be
included in the state summary criminal history information as soon as
administratively practicable.
The full palm prints of each hand shall be filed and maintained by
the Automated Latent Print Section of the Bureau of Criminal
Identification and Information of the Department of Justice, and may
be included in the state summary criminal history information.
(f) DNA samples and DNA profiles and other forensic identification
information shall be released only to law enforcement agencies,
including, but not limited to, parole officers of the Department of
Corrections, hearing officers of the parole authority, probation
officers, the Attorney General's office, district attorneys' offices,
and prosecuting city attorneys' offices, unless otherwise
specifically authorized by this chapter. Dissemination of DNA
specimens, samples, and DNA profiles and other forensic
identification information to law enforcement agencies and district
attorneys' offices outside this state shall be performed in
conformity with the provisions of this chapter.
(g) A defendant's DNA and other forensic identification
information developed pursuant to this chapter shall be available to
his or her defense counsel upon court order made pursuant to Chapter
10 (commencing with Section 1054) of Title 6 of Part 2.
(h) Except as provided in subdivision (g) and in order to protect
the confidentiality and privacy of database and data bank
information, the Department of Justice and local public DNA
laboratories shall not otherwise be compelled in a criminal or civil
proceeding to provide any DNA profile or forensic identification
database or data bank information or its computer database program
software or structures to any person or party seeking such records or
information whether by subpoena or discovery, or other procedural
device or inquiry.
(i) (1) (A) Any person who knowingly uses an offender specimen,
sample, or DNA profile collected pursuant to this chapter for other
than criminal identification or exclusion purposes, or for other than
the identification of missing persons, or who knowingly discloses
DNA or other forensic identification information developed pursuant
to this section to an unauthorized individual or agency, for other
than criminal identification or exclusion purposes, or for the
identification of missing persons, in violation of this chapter,
shall be punished by imprisonment in a county jail not exceeding one
year or by imprisonment pursuant to subdivision (h) of
Section 1170 in the state prison for 16 months, or two
or three years .
(B) Any person who, for the purpose of financial gain, knowingly
uses a specimen, sample, or DNA profile collected pursuant to this
chapter for other than criminal identification or exclusion purposes
or for the identification of missing persons or who, for the purpose
of financial gain, knowingly discloses DNA or other forensic
identification information developed pursuant to this section to an
unauthorized individual or agency, for other than criminal
identification or exclusion purposes or for other than the
identification of missing persons, in violation of this chapter,
shall, in addition to the penalty provided in subparagraph (A), be
punished by a criminal fine in an amount three times that of any
financial gain received or ten thousand dollars ($10,000), whichever
is greater.
(2) (A) If any employee of the Department of Justice knowingly
uses a specimen, sample, or DNA profile collected pursuant to this
chapter for other than criminal identification or exclusion purposes,
or knowingly discloses DNA or other forensic identification
information developed pursuant to this section to an unauthorized
individual or agency, for other than criminal identification or
exclusion purposes or for other than the identification of missing
persons, in violation of this chapter, the department shall be liable
in civil damages to the donor of the DNA identification information
in the amount of five thousand dollars ($5,000) for each violation,
plus attorney's fees and costs. In the event of multiple disclosures,
the total damages available to the donor of the DNA is limited to
fifty thousand dollars ($50,000) plus attorney's fees and costs.
(B) (i) Notwithstanding any other law, this shall be the sole and
exclusive remedy against the Department of Justice and its employees
available to the donor of the DNA.
(ii) The Department of Justice employee disclosing DNA
identification information in violation of this chapter shall be
absolutely immune from civil liability under this or any other law.
(3) It is not a violation of this section for a law enforcement
agency in its discretion to publicly disclose the fact of a DNA
profile match, or the name of the person identified by the DNA match
when this match is the basis of law enforcement's investigation,
arrest, or prosecution of a particular person, or the identification
of a missing or abducted person.
(j) It is not a violation of this chapter to furnish DNA or other
forensic identification information of the defendant to his or her
defense counsel for criminal defense purposes in compliance with
discovery.
(k) It is not a violation of this section for law enforcement to
release DNA and other forensic identification information developed
pursuant to this chapter to a jury or grand jury, or in a document
filed with a court or administrative agency, or as part of a judicial
or administrative proceeding, or for this information to become part
of the public transcript or record of proceedings when, in the
discretion of law enforcement, disclosure is necessary because the
DNA information pertains to the basis for law enforcement's
identification, arrest, investigation, prosecution, or exclusion of a
particular person related to the case.
(l) It is not a violation of this section to include information
obtained from a file in a transcript or record of a judicial
proceeding, or in any other public record when the inclusion of the
information in the public record is authorized by a court, statute,
or decisional law.
(m) It is not a violation of this section for the DNA Laboratory
of the Department of Justice, or an organization retained as an agent
of the Department of Justice, or a local public laboratory to use
anonymous records or criminal history information obtained pursuant
to this chapter for training, research, statistical analysis of
populations, or quality assurance or quality control.
(n) The Department of Justice shall make public the methodology
and procedures to be used in its DNA program prior to the
commencement of DNA testing in its laboratories. The Department of
Justice shall review and consider on an ongoing basis the findings
and results of any peer review and validation studies submitted to
the department by members of the relevant scientific community
experienced in the use of DNA technology. This material shall be
available to criminal defense counsel upon court order made pursuant
to Chapter 10 (commencing with Section 1054) of Title 6 of Part 2.
(o) In order to maintain the computer system security of the
Department of Justice DNA and Forensic Identification Database and
Data Bank Program, the computer software and database structures used
by the DNA Laboratory of the Department of Justice to implement this
chapter are confidential.
SEC. 11. Section 598c of the Penal Code
, as amended by Section 412 of Chapter 15 of the Statutes
of 2011, is amended to read:
598c. (a) Notwithstanding any other provision of law, it is
unlawful for any person to possess, to import into or export from the
state, or to sell, buy, give away, hold, or accept any horse with
the intent of killing, or having another kill, that horse, if that
person knows or should have known that any part of that horse will be
used for human consumption.
(b) For purposes of this section, "horse" means any equine,
including any horse, pony, burro, or mule.
(c) Violation of this section is a felony punishable by
imprisonment pursuant to subdivision (h) of Section 1170
in the state prison for 16 months, or two or
three years.
(d) It is not the intent of this section to affect any commonly
accepted commercial, noncommercial, recreational, or sporting
activity that relates to horses.
(e) It is not the intent of this section to affect any existing
law that relates to horse taxation or zoning.
SEC. 12. Section 598d of the Penal Code
, as amended by Section 413 of Chapter 15 of the Statutes
of 2011, is amended to read:
598d. (a) Notwithstanding any other provision of law, horsemeat
may not be offered for sale for human consumption. No restaurant,
cafe, or other public eating place may offer horsemeat for human
consumption.
(b) Violation of this section is a misdemeanor punishable by a
fine of not more than one thousand dollars ($1,000), or by
confinement in jail for not less than 30 days nor more than two
years, or by both that fine and confinement.
(c) A second or subsequent offense under this section is
punishable by imprisonment pursuant to subdivision (h) of
Section 1170 in the state prison for not less
than two years nor more than five years.
SEC. 13. Section 666 of the Penal Code
, as amended by Section 440 of Chapter 15 of the Statutes
of 2011, is amended to read:
666. (a) Notwithstanding Section 490, every
person who, having been convicted three or more times of petty
theft, grand theft, auto theft under Section 10851 of the Vehicle
Code, burglary, carjacking, robbery, or a felony violation of Section
496 and having served a term therefor in any penal institution or
having been imprisoned therein as a condition of probation for that
offense, is subsequently convicted of petty theft, then the person
convicted of that subsequent offense is punishable by imprisonment in
the county jail not exceeding one year, or imprisonment pursuant to
subdivision (h) of Section 1170.
(b) Notwithstanding Section 490, any person described in paragraph
(1) who, having been convicted of petty theft, grand theft, auto
theft under Section 10851 of the Vehicle Code, burglary, carjacking,
robbery, or a felony violation of Section 496, and having served a
term of imprisonment therefor in any penal institution or having been
imprisoned therein as a condition of probation for that offense, who
is subsequently convicted of petty theft, is punishable by
imprisonment in the county jail not exceeding one year, or in the
state prison.
(1) This subdivision shall apply to any person who is required to
register pursuant to the Sex Offender Registration Act, or who has a
prior violent or serious felony conviction, as specified in
subdivision (c) of Section 667.5 or subdivision (c) of Section
1192.7.
(2) This subdivision shall not be construed to preclude
prosecution or punishment pursuant to subdivisions (b) to (i),
inclusive, of Section 667, or Section 1170.12.
SEC. 14. Section 3000.09 of the Penal
Code , as added by Section 470 of Chapter 15 of the
Statutes of 2011, is amended to read:
3000.09. (a) Notwithstanding any other law, any parolee who was
paroled from state prison prior to July 1, 2011, shall be subject to
this section.
(b) Parolees subject to this section shall remain under
supervision by the Department of Corrections and Rehabilitation until
one of the following occurs:
(1) Jurisdiction over the person is terminated by operation of
law.
(2) The supervising agent recommends to the jurisdictional
authority that the offender be discharged and the jurisdictional
authority approves the discharge.
(3) The offender, except an offender who if released from prison
after July 1, 2011, would be subject to parole based on the criteria
identified in subdivision (a) of Section 3000.08, completes six
consecutive months of parole without violating their conditions, at
which time the supervising agent shall review and make a
recommendation on whether to discharge the offender to the
jurisdictional authority and the jurisdictional authority approves
the discharge.
(c) Parolees subject to this section who are being held for a
parole violation in county jail on July 1, 2011, shall be subject to
the jurisdiction of the Board of Parole Hearings.
(d) Persons who are subject to this section and on parole for a
serious felony described in subdivision (c) of Section 1192.7, a
violent felony described in subdivision (c) of Section 667.5, a crime
for which the person was sentenced pursuant to paragraph (2) of
subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of
Section 1170.12, or any crime where the person released from prison
was classified as a High Risk Sex Offender, whose parole is revoked,
as ordered by the Board of Parole Hearings, shall be remanded to
state prison. Upon completion of a revocation term for imprisonment
in state prison, the parolee shall remain under the supervision of
the Division of Adult Parole Operations. Any subsequent revocation
action shall be conducted by the court in the county into which the
parolee was released. Any subsequent term of imprisonment as ordered
by the court for a violation of the person's conditions of parole
shall be subject to Section 3000.08.
(e) Parolees subject to this section who are not on parole for a
crime or with a classification described in subdivision (c)
(d) who violate the conditions of their parole
on or after July 1, 2011, shall be under the jurisdiction of the
court in the county into which the parolee was released. Persons
returned to custody for any violation of a parole condition, as
ordered by the court, shall serve any custody term in a
county jail.
(f) This section shall remain in effect until July 1, 2014, and on
that date and thereafter any person, who is not on parole for a
crime or with a classification described in subdivision (c)
(d) , shall be discharged from parole.
SEC. 15. Section 3001 of the Penal Code
, as amended by Section 472 of Chapter 15 of the Statutes
of 2011, is amended to read:
3001. (a) Notwithstanding any other provision of law, when any
person referred to in paragraph (1) of subdivision (b) of Section
3000 who was not imprisoned for committing a violent felony, as
defined in subdivision (c) of Section 667.5, has been released on
parole from the state prison, and has been on parole continuously for
six months one year since release from
confinement, within 30 days, that person shall be discharged from
parole, unless the Department of Corrections and Rehabilitation
recommends to the court that the person be retained on parole and the
court, for good cause, determines that the person will be retained.
Notwithstanding any other provision of law, when any person referred
to in paragraph (1) of subdivision (b) of Section 3000 who was
imprisoned for committing a violent felony, as defined in subdivision
(c) of Section 667.5, has been released on parole from the state
prison for a period not exceeding three years and has been on parole
continuously for two years since release from confinement, or has
been released on parole from the state prison for a period not
exceeding five years and has been on parole continuously for three
years since release from confinement, the department shall discharge,
within 30 days, that person from parole, unless the department
recommends to the court that the person be retained on parole and the
court, for good cause, determines that the person will be retained.
The court shall make a written record of its determination and the
department shall transmit a copy thereof to the parolee.
(b) Notwithstanding any other provision of law, when any person
referred to in paragraph (2) of subdivision (b) of Section 3000 has
been released on parole from the state prison, and has been on parole
continuously for three years since release from confinement, the
court shall discharge, within 30 days, the person from parole, unless
the court, for good cause, determines that the person will be
retained on parole. The court shall state its findings on the record
and the department shall transmit a copy of those findings to the
parolee.
(c) Notwithstanding any other provision of law, when any person
referred to in paragraph (3) of subdivision (b) of Section 3000 has
been released on parole from the state prison, and has been on parole
continuously for six years and six months since release from
confinement, the court shall discharge, within 30 days, the person
from parole, unless the court, for good cause, determines that the
person will be retained on parole. The court shall make a written
record of its determination and the department shall transmit a copy
thereof to the parolee.
(d) In the event of a retention on parole, the parolee shall be
entitled to a review by the parole authority each year thereafter
until the maximum statutory period of parole has expired.
(e) The amendments to this section made during the 1987-88 Regular
Session of the Legislature shall only be applied prospectively and
shall not extend the parole period for any person whose eligibility
for discharge from parole was fixed as of the effective date of those
amendments.
SEC. 16. Section 1710.5 of the Welfare
and Institutions Code , as added by Section 619 of Chapter
15 of the Statutes of 2011, is amended to read:
1710.5. Notwithstanding any other law, on and after July 1, 2011,
a county may enter into a memorandum of understanding with the state
, or a Joint Powers Authority created for this purpose,
to provide for the admission of minors adjudicated for an offense
that is a sex offense listed under subdivision (c) of Section
290.008 of the Penal Code, or that is listed under subdivision
(b) of Section 707 of this code to the Division of Juvenile Justice.
SEC. 17. This act shall only become
operative no earlier than July 1, 2011, and only if A.B. 109 of the
2011-12 Regular Session becomes operative.
SEC. 18. In addition to any amounts provided in
the Budget Act of 2011, the sum of one thousand dollars ($1,000) is
hereby appropriated from the General Fund to the Department of
Corrections and Rehabilitation for purposes of state operations in
the 2011-12 fiscal year.
SEC. 19. This act is a bill providing for
appropriations related to the Budget Bill within the meaning of
subdivision (e) of Section 12 of Article IV of the California
Constitution, has been identified as related to the budget in the
Budget Bill, and shall take effect immediately.
SECTION 1. It is the intent of the Legislature
to enact statutory changes relating to the Budget Act of 2011.