Bill Text: CA SB296 | 2011-2012 | Regular Session | Enrolled
Bill Title: Criminal street gangs: injunction: petition for
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Vetoed) 2012-03-01 - Consideration of Governor's veto stricken from file. Veto sustained. [SB296 Detail]
Download: California-2011-SB296-Enrolled.html
BILL NUMBER: SB 296 ENROLLED
BILL TEXT
PASSED THE SENATE JUNE 1, 2011
PASSED THE ASSEMBLY AUGUST 31, 2011
AMENDED IN SENATE APRIL 7, 2011
AMENDED IN SENATE MARCH 29, 2011
INTRODUCED BY Senator Wright
FEBRUARY 14, 2011
An act to amend Section 186.22a of the Penal Code, relating to
gangs.
LEGISLATIVE COUNSEL'S DIGEST
SB 296, Wright. Criminal street gangs: injunction: petition for
exemption.
Existing law provides for injunctive relief from the unlawful
activities of criminal street gangs, the duration of which is within
the court's discretion. Existing law provides for injunctive relief
from a person who engages in harassment, as specified, of a duration
of not more than 3 years, and provides that, at any time within the 3
months before the expiration of the injunction prohibiting
harassment, the plaintiff may apply for a renewal of that injunction
by filing a new petition.
This bill would provide that, in addition to any other
administrative or judicial remedies, in an action relating to an
injunction pursuant to specified provisions to enjoin criminal street
gang activity, an individual may file with the court a petition on a
form developed by the Judicial Council to exempt him or her from the
injunction or portions of the injunction. The bill would require the
petitioner to state that he or she meets specified conditions. The
bill would allow the court to hold an evidentiary hearing and receive
any relevant evidence in order to rule on any petition filed
pursuant to these provisions. The bill would permit the court to
require the petitioner to testify at this hearing. The bill would
require the petitioner to notify any prosecuting agency that filed
the action for injunction of the filing of the petition. The bill
would permit the court to charge the petitioner for the reasonable
costs of filing the petition. The bill would provide that its
provisions pertaining to the petition process become operative on
July 1, 2012. The bill would express legislative findings,
declarations, and intent regarding the enactment of the above
provisions.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares the following:
(a) Under federal law applicable to the California gang database
(28 C.F.R. 23.20(h)), there is a five-year limit on the retention of
names in the system.
(b) Under state law relating to the registration of gang offenders
(subd. (c), Sec. 186.32, Pen. C.), there is a five-year limit on the
application of registration requirements to gang offenders.
(c) Existing law does not provide a time limit on the duration of
gang injunctions as applied to an individual.
(d) Members of the public subject to gang injunctions are
typically low-income persons who cannot afford attorneys.
(e) It is the intent of the Legislature to provide an inexpensive
means for members of the public to have affordable access to the
court to contest and to be removed from some or all of the provisions
of a gang injunction.
SEC. 2. Section 186.22a of the Penal Code, as amended by Section
50 of Chapter 178 of the Statutes of 2010, is amended to read:
186.22a. (a) Every building or place used by members of a
criminal street gang for the purpose of the commission of the
offenses listed in subdivision (e) of Section 186.22 or any offense
involving dangerous or deadly weapons, burglary, or rape, and every
building or place wherein or upon which that criminal conduct by gang
members takes place, is a nuisance which shall be enjoined, abated,
and prevented, and for which damages may be recovered, whether it is
a public or private nuisance.
(b) Any action for injunction or abatement filed pursuant to
subdivision (a), including an action filed by the Attorney General,
shall proceed according to the provisions of Article 3 (commencing
with Section 11570) of Chapter 10 of Division 10 of the Health and
Safety Code, except that all of the following shall apply:
(1) The court shall not assess a civil penalty against any person
unless that person knew or should have known of the unlawful acts.
(2) No order of eviction or closure may be entered.
(3) All injunctions issued shall be limited to those necessary to
protect the health and safety of the residents or the public or those
necessary to prevent further criminal activity.
(4) Suit may not be filed until 30-day notice of the unlawful use
or criminal conduct has been provided to the owner by mail, return
receipt requested, postage prepaid, to the last known address.
(5) (A) In addition to any other applicable administrative or
judicial remedies, in any action relating to an individual subject to
an injunction issued pursuant to subdivision (a), or issued pursuant
to Section 3479 or 3480 of the Civil Code enjoining criminal street
gang activity as a nuisance, the individual may petition the court to
exempt him or her from all or any part of an injunction order.
(B) The petition shall specify whether the individual is
requesting to be exempt from the entire injunction order or any part
of that order. The individual shall in the petition state all of the
following:
(i) The individual has not violated any provisions of an
injunction issued pursuant to subdivision (a), or issued pursuant to
Section 3479 or 3480 of the Civil Code enjoining criminal street gang
activity as a nuisance, of which he or she had notice.
(ii) The individual is not a member of the criminal street gang
that is subject to the injunction.
(iii) The individual is not a member of any other criminal street
gang, as defined in subdivision (f) of Section 186.22.
(iv) The individual does not have any criminal charges pending
against him or her.
(v) The individual has not been arrested in any jurisdiction
within three years prior to making the petition of which this
certification is a part.
(vi) The individual has not obtained any gang-related tattoos
within three years prior to making the petition of which this
certification is a part.
(vii) The individual has not, within three years prior to making
the petition of which this certification is a part, knowingly been
documented by any law enforcement agency to have been in the company
or association of any other gang member that the individual knows to
be covered by the injunction, other than an immediate family member.
(viii) The individual is not acting, and agrees that he or she
will not act, to promote or assist any activities prohibited by the
injunction.
(C) The court may hold an evidentiary hearing in order to rule on
any petition filed pursuant to subparagraph (A). The court may, in
its discretion, receive any evidence relevant to whether the petition
should be granted or denied. The court may require the petitioner to
testify at the evidentiary hearing.
(D) At the time notice of an injunction filed pursuant to
subdivision (a), or pursuant to Section 3479 or 3480 of the Civil
Code enjoining criminal street gang activity as a nuisance, is served
on any person, the petition form developed by the Judicial Council
for use by an individual seeking to be exempt from all or part of an
injunction shall be attached to the documents that are served.
(E) A petition for exemption, filed pursuant to this paragraph,
may be filed no more than once per three-year period. The petitioner
shall provide notice of the filing of the petition to any prosecuting
agency that filed the action for injunction pursuant to subdivision
(a) or pursuant to Section 3479 or 3480 of the Civil Code to enjoin
criminal street gang activity as a nuisance.
(F) The court may charge the petitioner for the reasonable costs
of filing the petition.
(6) Any prosecuting agency filing any action for injunction
pursuant to subdivision (a), or Section 3479 or 3480 of the Civil
Code to enjoin criminal street gang activity as a nuisance, shall, at
the time of filing the action with the court, provide a copy of the
filing to the local public defender's office.
(c) Whenever an injunction is issued pursuant to subdivision (a),
or Section 3479 or 3480 of the Civil Code to enjoin criminal street
gang activity as a nuisance, the Attorney General or any district
attorney or any prosecuting city attorney may maintain an action for
money damages on behalf of the community or neighborhood injured by
that nuisance. Any money damages awarded shall be paid by or
collected from assets of the criminal street gang or its members.
Only members of the criminal street gang who created, maintained, or
contributed to the creation or maintenance of the nuisance shall be
personally liable for the payment of the damages awarded. In a civil
action for damages brought pursuant to this subdivision, the Attorney
General, district attorney, or city attorney may use, but is not
limited to the use of, the testimony of experts to establish damages
suffered by the community or neighborhood injured by the nuisance.
The damages recovered pursuant to this subdivision shall be deposited
into a separate segregated fund for payment to the governing body of
the city or county in whose political subdivision the community or
neighborhood is located, and that governing body shall use those
assets solely for the benefit of the community or neighborhood that
has been injured by the nuisance.
(d) No nonprofit or charitable organization which is conducting
its affairs with ordinary care or skill, and no governmental entity,
shall be abated pursuant to subdivisions (a) and (b).
(e) Nothing in this chapter shall preclude any aggrieved person
from seeking any other remedy provided by law.
(f) (1) Any firearm, ammunition which may be used with the
firearm, or any deadly or dangerous weapon which is owned or
possessed by a member of a criminal street gang for the purpose of
the commission of any of the offenses listed in subdivision (e) of
Section 186.22, or the commission of any burglary or rape, may be
confiscated by any law enforcement agency or peace officer.
(2) In those cases where a law enforcement agency believes that
the return of the firearm, ammunition, or deadly weapon confiscated
pursuant to this subdivision, is or will be used in criminal street
gang activity or that the return of the item would be likely to
result in endangering the safety of others, the law enforcement
agency shall initiate a petition in the superior court to determine
if the item confiscated should be returned or declared a nuisance.
(3) No firearm, ammunition, or deadly weapon shall be sold or
destroyed unless reasonable notice is given to its lawful owner if
his or her identity and address can be reasonably ascertained. The
law enforcement agency shall inform the lawful owner, at that person'
s last known address by registered mail, that he or she has 30 days
from the date of receipt of the notice to respond to the court clerk
to confirm his or her desire for a hearing and that the failure to
respond shall result in a default order forfeiting the confiscated
firearm, ammunition, or deadly weapon as a nuisance.
(4) If the person requests a hearing, the court clerk shall set a
hearing no later than 30 days from receipt of that request. The court
clerk shall notify the person, the law enforcement agency involved,
and the district attorney of the date, time, and place of the
hearing.
(5) At the hearing, the burden of proof is upon the law
enforcement agency or peace officer to show by a preponderance of the
evidence that the seized item is or will be used in criminal street
gang activity or that return of the item would be likely to result in
endangering the safety of others. All returns of firearms shall be
subject to Chapter 2 (commencing with Section 33850) of Division 11
of Title 4 of Part 6.
(6) If the person does not request a hearing within 30 days of the
notice or the lawful owner cannot be ascertained, the law
enforcement agency may file a petition that the confiscated firearm,
ammunition, or deadly weapon be declared a nuisance. If the items are
declared to be a nuisance, the law enforcement agency shall dispose
of the items as provided in Sections 18000 and 18005.
SEC. 3. The Judicial Council shall develop a petition form, by
July 1, 2012, that meets the requirements of paragraph (5) of
subdivision (b) of Section 186.22a for use by an individual seeking
to be exempt from all or a part of an injunction, as specified in
subparagraph (A) of paragraph (5) of subdivision (b) of Section
186.22a.
SEC. 4. The amendments made to Section 186.22a of the Penal Code,
as contained in Section 2 of this act, shall become operative on July
1, 2012.
